amNewYork Advertising Terms and Conditions
These Advertising Terms and Conditions are hereby made part of the attached General Rate Card/Contract/Insertion Order (the "Advertising Agreement") by and between amNewYork, a division of Newsday LLC (“Publisher”) and the advertiser named therein and party thereto ("Advertising Party") and its advertising agency, if any ("Advertising Agency," and together with Advertising Party, "Advertiser"). Each such party acknowledges that the following additional terms and conditions are incorporated in and made a part of the Advertising Agreement. This Addendum, including the attached Advertising Agreement (along with any supplements, amendments, exhibits, schedules or addendums thereto, collectively, the "Agreement"), shall be binding upon the parties.
1. ADVERTISING ACCEPTANCE; PUBLISHER'S RIGHT TO REJECT OR ALTER
(a)
Submission of an advertisement to Publisher does not constitute a
commitment by Publisher to publish the advertisement. Publisher accepts
advertising only by publishing such advertisement. Upon such
acceptance, Advertiser acknowledges that (i) the terms and conditions
set forth in this Agreement shall apply to all advertising
orders unless such terms and conditions are modified, superseded or
otherwise altered by a written instrument signed by an authorized
representative of Publisher, (ii) the terms and conditions set forth in
this Agreement shall prevail over any inconsistent terms and
conditions set forth in any order or contract form of any Advertiser
and (iii) insertion orders containing disclaimers are not acceptable
and are not legally binding or valid. Publisher has the right, in its
sole and absolute discretion, to reject any advertisement or any
portion thereof. Publisher's publication of an advertisement shall not
affect its right to reject such advertisement thereafter.
(b) Publisher reserves the right to alter any advertising material in order for the material to conform to its current mechanical specifications. The rates stated in the Advertising Agreement shall remain the same upon a reduction in the size of any advertisement as long as the advertisement maintains the same proportion of the entire page. Publisher rates are based on column inch size rather than actual published size, which may have shrinkage related to the printing process.
2. LAWFUL ADVERTISING; INDEMNIFICATION
Advertising Party and Advertising Agency, if
applicable, jointly and severally represent and warrant that (a) any
and all material submitted to Publisher (i) is accurate and original,
(ii) does not violate any law or contract or infringe the copyrights,
trademarks, trade names, patents or other intellectual property rights
of any person, (iii) does not constitute unfair competition, and (iv)
contains no matter which is libelous, an invasion of privacy or
publicity, an unlawful appropriation of any name or likeness or is
otherwise injurious to the rights of any person; and (b) each of
Advertising Party and Advertising Agency, if applicable, has obtained all necessary consents for publication prior to submission to Publisher. Advertising Party and Advertising Agency, if
applicable, jointly and severally agree to defend, indemnify and hold
Publisher and its affiliates and their respective directors, officers,
principals, managers, members, partners, shareholders, employees, and
controlling persons and their affiliates (Publisher and each such
person being an "Indemnified Party"), harmless from
and against all damages to and liabilities resulting from or relating
to demands, claims, actions or causes of action, assessments or other
losses, costs and expenses relating thereto, interest and penalties
thereon and attorneys' fees, legal fees and any other expenses in
respect thereof or in enforcing their rights hereunder, by reason of or
resulting from or attributable to its breach of this Agreement, the
publication of any advertisement by Publisher (whether or not Publisher
assisted in the preparation of the advertisement), the distribution of
any sample product submitted by Advertising Party and/or Advertising
Agency or the acts or omissions of Advertiser, its contractors, agents,
employees and guests at any Publisher event (if the insertion order
includes Advertiser’s sponsorship of a Publisher
event).
3. MATERIALS; COPYRIGHTS, TRADEMARKS AND
INTELLECTUAL PROPERTY.
(a) Publisher has no
obligation to return any material submitted to Publisher by or on
behalf of Advertiser to Advertiser or any other party, and Publisher
shall have no liability for its loss or destruction.
(b) Publisher shall have the right to use any advertising published in Publisher's publication for the purpose of promoting any of the products and services of Publisher. Advertiser grants Publisher a non-exclusive, perpetual, irrevocable and worldwide license to publish any and all advertising content created by Advertiser or its agents or Publisher, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to Publisher's electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media. To the extent feasible and with the use of known technological resources, Publisher agrees that it will make reasonable efforts to prevent the reproduction of coupons capable of redemption by a consumer in any of Publisher's electronic publications.
4. POSITION REQUESTS
Publisher shall not be deemed in breach of this Agreement in the
event that it does not honor a specific position agreement due to
conflicting editorial needs, in Publisher's sole discretion. In the
event Advertiser has paid a premium for a particular position,
reimbursement for failure to publish in a particular position shall be
limited to the refund of such premium to Advertiser.
5. LIABILITY FOR ERRORS, OMISSIONS OR FAILURE TO
PUBLISH OR DISTRIBUTE
(a) Publisher's
liability for errors or omissions in advertisements or advertising
inserts shall be limited to the cost of advertising space in an amount
equal to the erroneous advertisement. Publisher's liability for failure
to publish any advertisement or distribute any advertising insert shall
be limited to a refund of any amount paid to Publisher for such
advertisement or insert. Notwithstanding the foregoing, Publisher shall
have no liability for, and no credit shall be issued to Advertiser for,
errors that do not materially affect the value of the advertisement or
advertising insert or where Advertiser is responsible for the error or
omission. Credits for errors in advertisements or advertising inserts
materially affected by the error are allowed for the first publication
or distribution only. Publisher’s liability in connection
with any sponsorship of a Publisher event shall be limited to the
amounts payable to Publisher under the particular insertion order to
which it relates.
(b) Notwithstanding anything to the contrary herein, in no event shall Publisher be liable to Advertiser or to any other parties for any further damages of any kind arising from any breach of this Agreement or any other advertising contract, written or oral, or act or omission of Publisher with respect to an advertisement or advertising insert or sponsorship, including but not limited to, direct, indirect, special, consequential, or punitive damages.
(c) Publisher is not responsible for errors involving orders, cancellations or corrections given orally. Written or facsimile confirmation of orders, cancellations or corrections must be received prior to Publisher's cancellation deadline. Publisher will publish advertisements and bill Advertiser for all advertising orders that are not canceled prior to the deadline. Advertiser may be subject to a cancellation charge when such cancellation results in production delays.
(d) Publisher shall not be responsible for the loss, theft or damage to any personal property of Advertiser, its employees, agents and guests during any Publisher event that may be sponsored by Advertiser.
6. PAYMENT
(a)
Payments are due by the fifteenth of the month for space used during
the preceding month. Credit privileges will be suspended on accounts
not paying by the 25th of the month in which a payment is due. Payments
must accompany all orders from accounts which have not established
credit with am New York.
(b) We reserve the right to cancel any contract and/or alter terms of payment: (1.) if any bill is not paid when due; (2.) if the advertiser and/or advertising agency becomes insolvent, makes an assignment for the benefit of creditors, is adjudged a bankrupt, or a receiver of the property or business of the advertiser and/or advertising agency is appointed, or if the advertiser and/or advertising agency shall file a petition seeking relief as a debtor under the federal bankruptcy act, or if a petition is filed against the advertiser and/or advertising agency for reorganization under said act, or for adjudication of bankruptcy; (3.) for any other cause considered sufficient by us.
7. AMENDMENTS; WAIVERS; RATE CHANGES
(a) Waiver of any term of this Agreement or
failure of Publisher to terminate this Agreement on account of any
breach by Advertiser shall not be deemed a waiver of Publisher's rights
to subsequently enforce any term or to terminate this Agreement by
reason of any subsequent breach by Advertiser. No waiver by either
party on any one occasion shall extend to or effect or be construed as
a waiver of any right or remedy on any future occasion or with respect
to any prior occasion. No course of dealing of any person nor any delay
or omission in exercising any right or remedy shall constitute an
amendment of this Agreement or a waiver of any right or remedy of any
party hereto.
(b) Except as set forth in subsection (c) of this Section 7, no amendment of any term, provision or condition of this Agreement shall be effective, unless in a writing executed by each of the parties hereto that specifically refers to this Agreement.
(c) Publisher shall have the right to revise the advertising rates set forth in this Agreement at any time upon notice to Advertiser of such rates. Advertiser may terminate this Agreement on the date the new rates become effective by giving written notice within 30 days of such termination. In the event of such termination, Advertiser shall be liable for Advertising published prior to such termination at the Current Agreement Rate. "Current Agreement Rate" is defined as the billing rate in effect at the time of publication.
8. TERMINATION OF AGREEMENT; EFFECT OF
TERMINATION
(a) Publisher shall have the
right to terminate this Agreement at any time, with or without notice
to Advertiser, for Advertiser's failure to remit payment for invoices
by the due date of such bills.
(b) Publisher reserves the right to review the volume of advertising placed on a quarterly basis and to cancel the contract in its sole discretion if advertising placed falls 15% or more below the quarterly average volume needed to fulfill the twelve-month contract amount, if Advertiser has such a contract with Publisher. Failure of Publisher to review the frequency of advertising or cancel the contract for any reason shall not be deemed a waiver of the right to cancel in the future or to impose any applicable rate adjustment.
(c) Subject to the terms of subsection (e) of this Section 8, Advertiser shall have the right to terminate this Agreement at any time by written notice to Publisher.
(d) Publisher shall have the right to terminate this Agreement for any reason and at any time by written notice to Advertiser, in which event and so long as Advertiser has been meeting its revenue, volume or other commitment to Publisher over time in a way that is consistent with Advertiser reaching its final commitment, Advertiser shall be liable for advertising prior to such termination at the Current Agreement Rate.
(e) Except for a termination under Section 7 above, in the event the Agreement is terminated or for any other reason Advertiser fails to purchase during the term of the Advertising Agreement the advertising generating the revenue, volume or other commitment due to Publisher, Advertiser immediately shall pay to Publisher the lesser of the following:
(i) the original commitment made to Publisher under the Advertising Agreement or
(ii) an amount for all advertising published during the term including advertising previously billed ("Amount Due"), adjusted for space, inserts and color actually used. The unpaid balance of such adjusted Amount Due shall be based upon the "Actual Rate Earned" for advertising during the term. The "Actual Rate Earned" is defined as the rate which would have been payable by Advertiser if the amount of advertising actually purchased during the term had been contracted for in the first instance, and such Actual Rate Earned shall be ascertained by reference to the applicable Publisher rate card in effect on the date that the advertising was published.
9. INTEGRATION
Advertiser agrees that no representations of any kind have been
made to Advertiser by Publisher or by any of its agents and that no
understanding has been made or agreement entered into other than as set
forth herein.
10. FORCE MAJEURE
Publisher shall not be liable for failure to publish or distribute
any advertisement because of strikes, labor disputes, government
action, war, fire, breakdown of equipment, terrorist act, or any other
cause beyond its reasonable control.
11. OTHER SERVICES
Except as stated otherwise, payments by Advertiser to Publisher
for services or goods other than advertising space, inserts and color
shall not be applied toward any revenue totals set forth in the
Agreement.
12. COLLECTIONS
Advertiser shall be liable for all costs incurred by Publisher,
including but not limited to attorneys' fees and expenses, in
collecting past due accounts and in defending any and all claims
asserted in the action.
13. TAXES
Any and all
taxes levied against advertising shall be added to the advertising
charges, including but not limited to any sales taxes.
14. PREPARATION OF ADVERTISING
Advertiser represents and warrants that it
is familiar with all laws and regulations applicable to its
advertisement(s), and that advertising material submitted to Publisher
shall be in compliance with such laws and regulations.
On request, Publisher may assist Advertiser in preparing its advertisement(s) for publication. This assistance may include design, composition, text and artwork. Publisher does not assume any obligations to perform a legal review of Advertiser's advertisement(s). Advertiser remains solely responsible for the contents of the advertisement(s) and for compliance with any laws regulating such advertising.
15. ASSIGNMENT
This Agreement and the rights and obligations
hereunder are personal to Advertiser and may not be assigned by any act
of Advertiser or by operation of law, change of control of Advertiser
or otherwise without the prior written consent of Publisher, to be
granted or not granted in Publisher's sole and absolute discretion.
Advertiser may not assign to, nor utilize for the benefit of another
person or entity, any of the lineage required to be purchased by
Advertiser without Publisher's prior written consent, to be granted or
not granted in Publisher's sole and absolute discretion.
16. SEVERABILITY
If
any provision hereof is held invalid or unenforceable by a court of
competent jurisdiction, such invalidity shall not affect the validity
or operation of any other provision, and such invalid or unenforceable
provision shall be deemed modified to the extent necessary to render it
enforceable, preserving to the fullest extent permissible the intent of
the parties set forth in this Agreement. To the full extent, however,
that the provisions of any applicable law may be waived, they are
hereby waived to the end that this Agreement be deemed a valid and
binding agreement enforceable in accordance with its terms.
17. JOINT AND SEVERAL LIABILITY OF ADVERTISING
PARTY AND ADVERTISING AGENCY
Advertising
Party and Advertising Agency are each hereby obligated, jointly and
severally, to pay any and all amounts owed to Publisher, as and when
the same shall become due and payable, in accordance with the terms
hereof. All written agreements between Advertising Party and
Advertising Agency, shall include provisions whereby each such party
agrees that Publisher has a right to recover any and all amounts owed
hereunder from either such party directly. Publisher shall be a
third-party beneficiary of all such agreements. Publisher is hereby
irrevocably appointed as each of Advertising Agency's and Advertising
Party's attorney-in-fact, coupled with an interest, with exclusive
power to collect, receive and retain any amounts owing from Advertising
Party to Advertising Agency, or Advertising Agency to Advertising
Party, as the case may be, pursuant to such agreements and Publisher
shall retain such amounts to offset amounts due hereunder. Each of
Advertising Agency and Advertising Party shall immediately upon receipt
pay directly to Publisher any and all amounts that it receives from
Advertising Party or Advertising Agency, as the case may, for payment
of amounts owed pursuant to this Agreement.
18. REPRESENTATIONS AND WARRANTIES
Each of Advertising Party and Advertising
Agency, hereby represents and warrants to Publisher:
(a) It is duly incorporated or formed, as the case may be, validly existing and in good standing under the laws of the state of its incorporation or formation, as the case may be, and has all requisite power to own, lease and operate its property and to carry on its business as now being conducted.
(b) All action on the part of such party necessary for the authorization, execution and delivery of, and the performance of all of its obligations under, this Agreement has been duly taken. This Agreement constitutes a valid and binding obligation of such party, enforceable against it in accordance with its terms.
(c) The execution and delivery by such party of this Agreement do not, and the consummation of the transactions contemplated hereby will not, (i) violate or conflict with the organizational documents of such party or (ii) constitute a material breach or default or give rise to any lien or other encumbrance, third-party right of termination, cancellation, material modification or acceleration under any material agreement, understanding or undertaking to which it is a party or by which it is bound, or violate or conflict with any applicable law.
(d) All written agreements between Advertising Party and Advertising Agency include provisions whereby each such party agrees that Publisher has a right to recover any and all amounts owed hereunder from either such party directly.
(e) Advertising Agency is authorized and has the power to (i) enter into this Agreement on behalf of or in the name of Advertising Party and (ii) bind Advertising Party to this Agreement without the prior written consent of Advertising Party.
(f) Advertising Party is authorized and has the power to (i) enter into this Agreement on behalf of or in the name of Advertising Agency and (ii) bind Advertising Agency to this Agreement without the prior written consent of Advertising Agency.
19. ADVERTISER SPONSORSHIPS
To the extent that the insertion order includes
Advertiser’s sponsorship of a Publisher event, Advertiser
additionally agrees to the following terms:
(a) Advertiser will provide any gift bag items, as well as materials or staffing for any on-site display/sampling area in the Insertion Order, subject to Publisher’s approval. Advertiser represents and warrants that it shall obtain all necessary permissions and releases for all sponsorship materials, gift bag items, and sample or other promotional items to be provided by it, including the distribution and/or display thereof.
(b) Notwithstanding anything to the contrary in this Agreement, the sponsorship fee set forth in the Agreement is non-refundable, except as otherwise provided in section 19(c).
(c) Notwithstanding sections 8(c) and 8(d) of these terms, the only termination rights of either party shall be as follows: (i) by either party, if the other party fails to either discharge any obligation or remedy any default under this Agreement for a period of more than five (5) business days after written notice has been given to the defaulting party specifying such failure or default; and (ii) by Publisher, effective immediately, if Advertiser ceases operation for any reason, or the event is canceled for any reason. If the event is cancelled, Publisher will refund on a pro rata basis, as determined by Publisher, the portion of the sponsorship fee not attributable to sponsorship benefits already received.
(d) Advertiser shall seek the prior written approval of Publisher for any use of Publisher’s name and logo. Advertiser shall immediately cease using Publisher’s name and logo upon completion of the event or the earlier termination of the sponsorship or this Agreement.
(e) Advertiser represents and warrants that during the term of this Agreement, it shall maintain in force a policy of general liability insurance in connection with the event in the amount of at least $1,000,000 per occurrence, which shall cover Advertiser from any loss resulting from the risks therein. Such policy shall name Publisher as an additional insured and shall state that it may not be canceled or terminated without thirty (30) days prior written notice to Publisher. A certificate of insurance shall be provided to Publisher upon the execution of this Agreement.
Copyright © 2010, Newsday LLC