1. Scope. These Terms & Conditions govern the terms under which Source Interlink Magazines, LLC or Source Interlink Media, LLC (collectively “SIM”) may place advertisements from the Advertiser in a print publication owned and published by Source Interlink Magazines, LLC or in digital media owned and published by Source Interlink Media, LLC. As used herein, the term “Agreement” means collectively these Terms & Conditions and any insertion order or space order contract entered into by Advertiser. In the event of any conflict between the terms of any insertion order or space order contract and the terms of these Terms & Conditions, the terms set forth in these Terms & Conditions shall control. As used herein, the term “IO” means insertion order and “Advertiser” means the advertiser identified on the IO or space contract order. By submitting an order for placement of an advertisement and/or placing an advertisement, Advertising and Agency, and each of them, agree to be bound by all of the following terms and conditions.
2. All advertisements are subject to SIM’s prior approval. SIM reserves the right to reject or cancel any advertisement prior to publication or thereafter for any reason at any time without liability. SIM may, in its sole discretion, set any restrictions on the positioning of the actual advertisement in the magazine or web site. SIM reserves the right to modify (at the Advertiser’s expense) any advertisement, with the Advertiser’s approval generally but without the Advertiser’s approval if the ad materials are received after the posted and/or printed Ad Materials Due date, in the event that SIM finds that the copy, artwork or any other creative elements fail to meet SIM’s specifications or are not in compliance with SIM’s advertising guidelines. SIM reserves the right in its sole discretion to label as advertisements all advertisements that are not immediately identifiable as advertisements. All orders to place advertisements in the magazine or web site are subject to the rate card changes, place units and specifications then in effect, all of which are subject to change and shall be made a part of these terms and conditions.
3. Advertiser and Agency represent and warrant that: (a) they have the right to place the advertisement in the magazine or web site; (b) nothing contained in the advertisement violates or will violate the intellectual property rights, confidentiality rights, proprietary rights, privacy rights, property rights, or contract rights of any person or entity; (c) nothing contained in the advertisement will defame or disparage any person or entity; and (d) nothing contained in the advertisement will violate any law, rule, or regulation, including without limitation any U.S. Postal regulations.
4. In no event shall SIM be liable as the result of any error, delay, or omission beyond SIM’s reasonable control, including without limitation any fire, act of god, labor strike, war, civil insurrection, or the like. SIM’s liability, if any, relating to or arising out of the placement of the advertisement in the magazine or web site or any error, delay, or omission relating thereto shall not exceed the amounts actually paid by Advertiser and/or Agency for placing the advertisement, and in no event shall SIM be liable for any loss of income, indirect damages, consequential damages, treble or enhanced damages, statutory damages, or punitive damages of any nature regardless of the theory of liability.
5. SIM makes no representations or warranties with respect to the quality of the appearance of the advertisement, and in no event shall SIM be responsible for the production quality of any materials or inserts provided to SIM. Advertiser and Agency shall be responsible for any additional costs incurred by SIM in resulting from the failure of any materials or inserts furnished to SIM to meet SIM’s specifications. In the event that SIM is unable to publish the furnished materials or inserts as a result of their failure to meet such specifications, Advertiser and Agency shall remain liable for the applicable rate card charges as if the advertisements had run.
6. In the event an IO is entered into by an ad agency on behalf of an Advertiser, such agency represents and warrants that it has the full right and authority to place such IO on behalf of the Advertiser and that all legal obligations arising out of the placement of the advertising creative will be binding on both the Advertiser and the advertising agency. Advertiser and Agency shall be jointly and severally liable for the costs of placing the advertisement and any other charges relating thereto, including any costs of collection incurred by SIM, including without limitation SIM’s attorneys’ fees.
7. Neither party shall release any non-public information regarding this Agreement, any IO or space order contract, or the Parties’ relationship without the other party’s prior written consent. The prohibition in the preceding sentence shall apply fully to press releases, promotional announcements, merchandising materials, and the like.
8. Advertiser shall indemnify, defend, and hold harmless Source Interlink Magazines, LLC and Source Interlink Media, LLC and their parent organizations, subsidiaries, and affiliates and their respective officers, directors, employees, attorneys and agents from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) a claim arising from the breach by Advertiser of any provision of this Agreement; and/or (ii) any third party claim alleging that an advertisement infringes the intellectual property rights, publicity or privacy rights, or other rights of such third party.
9. Third Party Ad Servers (for Digital Advertising)
(a) SIM will track delivery through its ad server and Advertiser will also track delivery through its proprietary or the subcontracted third party ad server identified in the IO. Advertiser may not substitute the third party ad server identified in the IO without SIM’s prior consent. The Parties agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide placement-level activity reports to each other. In the event that the SIM ad server measurements are higher than those produced by the Advertiser’s third party ad server by more than 25% over the invoice period, Advertiser will facilitate a reconciliation effort between the two ad servers. Advertiser must alert SIM in writing about the discrepancy. If the discrepancy cannot be resolved and Advertiser has made a good faith effort to facilitate the reconciliation effort, Advertiser reserves the right to terminate this Agreement within 14 days of the discrepancy’s discovery or pay SIM based on SIM’s ad server reported data, plus a 10% upward adjustment to delivery.
(b) Where an Advertiser is utilizing a third party ad server and that third party ad server cannot serve the ad, Advertiser shall have a one-time right to temporarily suspend the delivery under the IO for a period of up to 72 hours. Upon written notification by Advertiser of a non-functioning third party ad server, SIM has 24 hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any ad that runs within the immediate 72-hour period thereafter until SIM is notified that the third party ad server is able to serve ads. After the 72-hour period passes and Advertiser has not provided written notification that SIM can resume delivery under the IO, Advertiser will pay for the ads that would have run or are run after the 72 hour period but for the suspension and can elect SIM to serve ads until its third party ad server is able to serve ads. If Advertiser does not so elect for SIM to serve ads until its third party ad server is able to serve ads, SIM may utilize the inventory that would have been otherwise used for SIM’s own advertisements or advertisements provided by a third party.
(c) Upon notification that the third party ad server is functioning, SIM will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in SIM owing a makegood to Advertiser.
10. Miscellaneous. The Parties are independent contractors and are not partners, joint venturers or otherwise affiliated. The covenants, conditions, terms and provisions of this Agreement shall be binding upon, and shall inure to the benefit of, the Parties hereto and, each of their respective personal representatives, successors and assigns. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida without regard to conflict of law principles. Any action or proceeding arising out of or in connection with this Agreement shall be venued in a federal or state court of appropriate subject matter jurisdiction located in Lee Country, Florida and the Parties hereby consent to the personal jurisdiction in such courts. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation will be entitled to recover from the other party all the costs, reasonable attorneys’ fees, and other expenses incurred by such prevailing party in the litigation. This Agreement contains the final and entire agreement between the Parties and is intended to be an integration of all prior agreements between them regarding the subject matter hereof. SIM shall not be bound to any terms or conditions not set forth herein. No failure by either party to insist upon the strict performance of any term, covenant, agreement or provision of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of any such term, covenant, agreement or provision. No term, covenant, agreement or provision of this Agreement and no breach thereof shall be waived, altered or modified except by a written instrument executed by the parties. In the event that, for any reason whatsoever, any clause or provision of this Agreement (or the application of such clause or provision to a particular set of circumstances) is held or declared to be invalid, illegal or unenforceable, such holding or declaration shall not in any way affect the validity or enforceability of any other clause or provision of this Agreement (or the application of such clause or provision to a different set of circumstances).