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Submission of any print or online advertising constitutes acceptance of the
following Terms and Conditions:
1. TERMS OF PAYMENT.
Prepayment is due by the Advertising Space Deadline.
Payment under approved credit is due by the 30th day from the date of invoice.
Interest accrues on all past-due accounts at the rate of 1-1/2% per month or as
allowed under applicable law, whichever is greater.
2. DEADLINE FOR SUBMITTING ADS.
Ad copy and signed advertising contract must be RECEIVED by Publisher no later than the applicable Advertising Space Deadline. Otherwise Publisher, in its sole discretion and without liability, may
refuse to run a submitted ad and may cancel the applicable contract.
3. DEADLINE FOR CHANGE OR CANCELLATION BY ADVERTISER/
AGENCY.
Any request to change or cancel an ad must be written and signed by
Advertiser or Agency and RECEIVED by Publisher no later than the applicable
Advertising Space Deadline. Otherwise Publisher, in its sole discretion and without
liability, may refuse to change or cancel the ad, in which case Advertiser and Agency
shall nevertheless be responsible for full payment of net cost and for performing all
terms and conditions of the applicable contract.
4. PUBLISHER’ S DISCRETION.
Publisher may, at any time and without liability:
(a) Cancel or reject any ad, even if previously accepted by Publisher, if Publisher, in
its sole discretion, considers its form or content or links to other web sites (for
online ads) to be misleading, in bad taste, adverse to public interest, in violation of
applicable law, or otherwise inappropriate for the character of
the publication or web site in which it is to be displayed; (b) Place the word“advertisement” with any ad copy, which, in Publisher’s sole discretion, resembles
editorial material; (c) In its sole discretion, determine ad location and/or position
in the publication or web site, if, after using best efforts, Publisher cannot place ad
in exact location/position specified in the applicable contract; (d) Refuse to publish
future ads, if Advertiser or Agency has failed to pay an advertising account when
due, has paid with a bounced check or other uncollectible funds, or has otherwise
breached the terms and conditions of any ad contract or other agreement
with Publisher.
5. LOSS OF EARNED FREQUENCY DISCOUNTS.
Cancellation of an ad by
Advertiser or Agency for any reason or by Publisher for any of the reasons set forth
in these Terms and Conditions may result in an adjustment and resulting increase
in the ad fee rate charged hereunder, based on the actual frequency discount rate
earned rather than the greater frequency discount rate billed under the applicable
ad contract.
6. LIMITATION OF LIABILITY.
Except for refund of monies paid for an ad,
Publisher shall not be liable to Advertiser or Agency in the event it fails to publish
an ad or the ad contains errors attributable to Publisher. For online ads, Publisher
shall not be liable to Advertiser or Agency for failure to deliver guaranteed impressions
within the contract term, but shall continue to run that advertising until
the impressions have been delivered. UNDER NO CIRCUMSTANCES SHALL
PUBLISHER BE LIABLE TO ADVERTISER OR AGENCY FOR INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS OR LOSS
OF GOODWILL, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY
UPON WHICH ANY SUCH CLAIM MAY BE BASED.
7. EXCUSED PERFORMANCE.
Publisher shall not be liable to Advertiser or
Agency for any delays in the production or distribution of the publication or web
site in which an ad is to be displayed, if caused in whole or part by acts of God,
governmental or quasi-governmental entities, fires, floods, labor or material
shortages, transportation interruption of any kind, systems or other technological
failures affecting Publisher’s web site, or any other event beyond its reasonable
control.
8. WARRANTY AND INDEMNIFICATION.
Advertiser and Agency warrant and
represent (a) that any ad submitted does not violate applicable law, including the
civil and property rights of any third party, and (b) that Advertiser and Agency are
authorized to publish same. Advertiser and Agency agree to jointly and severally
indemnify, hold harmless and defend at their sole cost Publisher from any liability,
loss or expense (including court costs and attorneys’ fees), arising out of any breach
of the aforementioned warranties and representations, including but not limited to
any third-party claim or lawsuit for libel, plagiarism, copyright or trademark
infringement, invasion of privacy or any other claim based on the content and/or
form of the advertisement.
9. ADVERTISER/AGENCY LIABILITY.
Publisher may rely on the acts and
representations of Agency as the acts and representations of, and binding on,
Advertiser. Any Agency submitting an ad contract agrees to be jointly and severally
liable with Advertiser for all resulting ad fees and production charges due
Publisher, regardless of whether Advertiser has first paid Agency for those
fees/charges and regardless of whether Publisher has first tried to collect those
fees/charges from Advertiser without success.
10. COLLECTION AND LITIGATION COSTS.
Advertiser and Agency shall be
jointly and severally liable to Publisher for any and all costs incurred by Publisher
in attempting to collect past-due ad fees and production charges, including
without limitation contingency fees paid collection agencies and/or attorneys,
reasonable attorney fees, court costs and other litigation expenses.
11. APPLICABLE LAW AND VENUE.
By placing advertising with Publisher,
Advertiser and Agency agree to be bound by these Terms and Conditions, which
shall be governed and interpreted solely in accordance with the substantive law of
the State of California (without regard to that State’s conflict of laws) and the
Federal laws of the United States (if applicable). Advertiser and Agency further
agree that any dispute or claim concerning advertising submitted hereunder shall be
exclusively litigated in a court having competent jurisdiction in Orange County,
California, which Advertiser and Agency agree shall have personal jurisdiction
over them.
12. ENTIRE AGREEMENT.
These Terms and Conditions replace and supersede
any prior agreements, understandings, or representations (oral or written) made by
or between the parties and concerning this subject matter. These Terms and
Conditions may not be amended or waived except in writing signed by both
Publisher and Advertiser or Agency. |
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