Standard Terms And Conditions For The Submission Of Advertisements For Time Out America Llc
1.1 For the purposes of these terms and conditions (the “Terms”) capitalized terms shall have the meaning given in the Insertion Order and:
a) "Advertisement" shall mean the materials, including all copy and imagery, supplied by the Advertiser to be printed on a page, whether in print or digital, separately inserted in the Magazine, newsletter, email marketing campaign or included on a Time Out Digital Product or to be used for a Creative Solution.
b) " Advertisement Rates" shall mean the rates set out in the Rate Card as listed in the Insertion Order per Item.
c) "Advertiser" shall mean the person placing the order for the insertion of the Advertisement with the Publisher including, where relevant, the Agency as set out in the Insertion Order.
d) “Campaign Start Date” shall mean the date specified in the Insertion Order.
e) "Cancellation Date" shall mean the date upon which the Advertiser shall be required to notify the Publisher of any cancellation of an order as set out in the Insertion Order.
f) “Creative Solution” means any bespoke creative solution campaign (including but not limited to video, content-hub, social posts, Custom Event etc) ordered by the Advertiser pursuant to the Insertion Order that is subject to these terms and may be subject to additional terms and conditions between Publisher and the Advertiser.
g) "Copy Date" shall mean the dates for receipt of the Advertisement in effect at the Order Date as stipulated in the Insertion Order.
h) "Copy Deadline" shall mean a time of day on the Copy Date specified by the Publisher in respect of which time shall be of the essence.
i) “Custom Event” shall mean any event that the Publisher produces, organizes, manages or otherwise produces on behalf of the Advertiser as set out in the Insertion Order that is subject to these terms and may be subject to additional terms and conditions between Publisher and the Advertiser (including but not limited to services, sponsorship terms, mutual obligations).
j) "Insertion Order" or “IO” shall mean the order form in effect at the Order Date.
k) "Magazine" shall mean Time Out New York or such other location as specified in your Insertion Order.
l) "Order Date" shall mean the date upon which the Insertion Order is signed by both parties.
m) "Ad Specifications" shall mean Publisher’s required advertising specifications and guidelines (e.g. ad size, requirements, formats, etc) in effect at the Order Date stipulated in the Rate Card.
n) “Item” means each line item that the Advertiser has ordered from Publisher in the Insertion Order
o) “Publication” shall mean the Magazine, newsletter, email marketing campaign and/or the Webpage, or any digital insertion into one of Time Out’s Digital Product as agreed between the parties and set out in the Insertion Order and may in some instances may mean some other publication as set out in the Insertion order.
p) "Publisher" shall mean Time Out America, LLC.
q) "t=Rate Card" shall mean the Publisher's Rate Card in effect at the Order Date and may include, among other matters, its scale of advertisement rates, production specifications and standard terms and conditions.
r) “Site” or “Sites” means the Advertiser’s website or websites.
s) “Webpage” shall mean timeout.com or any webpage operated by Publisher that hyperlinked to it.
t) “Territory” means the United States of America
u) “Time Out Digital Product” means the Webpage, the mobile application, the tablet application or any future digital product owned and operated by Publisher that Publisher may release from time to time.
v) “Trade Marks” means the trade names and logos of either Publisher or Advertiser.
1.2 In these Terms, unless otherwise specified or the context otherwise requires:
a) words importing the singular only shall include the plural and vice versa;
b) words importing the whole shall be treated as including a reference to any part;
c) any phrase in the Terms introduced by the term “include”, “including”, “in particular” or similar expression shall be construed as illustrative and shall not limit the sense of the words preceding that term;
d) headings used in these Terms are for reference only and shall not affect its construction or interpretation.
2. Acceptance of Advertisement
a) A signed Insertion Order for the placement of an Advertisement into the Publication or for a Creative Solution shall amount to acceptance of these Terms. All Advertisements must be submitted to the Publisher in a form that complies with the Ad Specifications following the submission of the completed Insertion Order and receipt, in cleared funds of the applicable Advertisement Rate. The Publisher shall have the right to change its Advertisement Rates at any time. If the Publisher changes its Rate Card during the term of any IO, the applicable rate in force at the date of the Insertion Order shall continue to apply to such Insertion Order for a period of six months following notification by the Publisher of any such change, after which the amended advertising rates shall apply. For the avoidance of doubt, Advertiser and Publisher shall negotiate in good faith a separate agreement for the Custom Event (if required).
b) Additional Terms Applicable to Internet Advertising
All Advertisements on the Webpage or other Time Out Digital Product are also subject to the IAB/AAAA Standard Terms and Conditions For Internet Advertising Media Buys One Year or Less (Version 3.0) (the “IAB 3.0 Terms”) as amended in the applicable IO.To the extent of any conflict between these Terms and the IAB 3.0 Terms these Terms shall govern. All impressions are estimates and not guaranteed. All impressions and/or other measurements of advertisements for the Webpages are based solely on Publisher’s calculations. Unless otherwise agreed to in a signed writing by Publisher, Publisher will bill for the advertising on the Webpages based on such Webpages’ own ad delivery number and, if applicable, Publisher has the right to bill for advertising in any emails or newsletters based on its own ad delivery numbers, and (c) Unless expressly agreed by Publisher in writing, impressions sold are in the United States.
3.1 The Advertiser hereby grants to the Publisher a non-exclusive (unless otherwise agreed in writing), worldwide, irrevocable, perpetual licence to (i) display, reproduce, copy, distribute and transmit the Advertisement in the Publication (i) display, reproduce, copy, distribute and transmit any Advertisement provided by Advertiser to Publisher in the Creative Solution; (ii) link to the Site(s); and (iii) sublicense such rights to third parties as applicable and required to fulfil the Advertisement and/or Creative Solution.
3.2 The Advertiser warrants that it is duly authorized to supply Publisher with logos and trade marks necessary for Publisher to fulfil the Advertisement and Creative Solutions and hereby grants a non-exclusive, non-transferable, royalty-free licence to use its logos and trade marks for such purpose. Publisher shall only use Advertiser’s logos and trade marks in accordance with brand guidelines that are supplied by the Advertiser. Advertiser may not use Publisher’s tradenames nor logos without the express written consent of Publisher.
3.3 In consideration of payment for the Creative Solutions, Publisher grants the Advertiser a worldwide, non-exclusive, non-transferable, paid and one (1) year termed license commencing on the Start Date listed in the IO to use the Creative Solutions (excluding Custom Events) for the use as defined in the Insertion Order unless the parties have agreed otherwise pursuant to the IO. For the avoidance of doubt, this clause 3.3 does not apply to any material that is subject to third party intellectual property rights. Advertiser must use final Creative Solution assets only (no working assets) and may not use photo or text separately. The article and photos need to be used as a whole, in their final, published state.
4. Payment Terms
4.1 Payment of the Advertisement Rates and any other sums due to the Publisher (including any associated production, late copy) will be payable not less than seven days in advance of the Campaign Start Date unless otherwise agreed in writing in the IO.
4.2 Where the Publisher has expressly agreed in writing to give the Advertiser credit, the time for payment of the Advertising Rate shall be no later than 30 days following the date of the relevant invoice unless otherwise agreed in writing by the Publisher.
4.3 The Advertiser shall, together with payment, supply full details of such remittance specifying the invoice number (if available) and the Campaign Start Date.
4.4 Payment of all sums due to the Publisher shall be made to Time Out America, LLC by cheque or shall be transferred to Time Out America, LLC’s bank account electronically.
4.5 Payment of all sums due to the Publisher shall be made in accordance with this clause 4 whether or not the Advertiser has received the Publisher's invoice, notwithstanding any dispute or query in relation to any element of any of the invoice. The time for payment of the all sums due shall be of the essence of the Terms.
4.6 In the event that any payment is not made by the due date, the Publisher reserves the right to charge the following additional charges upon provision of invoice to Advertiser that will become due and payable within seven (7) days of receipt:
a) the sum of $50 as an administration charge in respect of each invoice not paid on or before the due date; and
b) $100 compensation plus interest on the amount unpaid. Except for invoiced payments that the Advertiser has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. The Advertiser shall also reimburse Publisher for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
4.7 In addition to all other remedies, Publisher may suspend its performance if any payment is past due. Suspension will not relieve Advertiser of its obligation to pay in full. Advertiser will be short-rated if the number of insertions upon which specified rates are based are not used. All billing is based on actual impressions, insertions or leads delivered, as applicable, as determined by Publisher. Publisher reserves the right to consider campaigns within 10% of the impression goal at the end of the campaign completed unless otherwise agreed in writing. In such event, Publisher will have no obligation to deliver a “make good” and Publisher will invoice, and Advertiser will pay, for impressions actually delivered based on the contracted rate and without regard to any short rate. Unless stated otherwise on the IO, campaigns are billed upon publication of the Advertisement or completion of delivery of impressions, as applicable; provided that for campaigns with a duration of longer than one (1) month, Publisher reserves the right to bill in-progress on a monthly basis. PUBLISHER DOES NOT ACCEPT SEQUENTIAL LIABILITY AND MAY HOLD ADVERTISING AGENCY AND ADVERTISER JOINTLY AND SEVERALLY LIABLE FOR ALL AMOUNTS DUE HEREUNDER.
5. Amendments to Advertisements
5.1 Notwithstanding the warranties contained in clause 10, the Publisher has the absolute right at its discretion to refuse or require to be amended any artwork, materials and copy for or relating to an Advertisement so as:-
a) if in Publisher’s sole opinion the content is objectionable, or;
b) to avoid infringing a third party's rights; the Federal Trade Commission (FTC) Act or any relevant legislation; to the extent that notice is provided to Publisher by such third party or FTC or government body prior to Publication.
c) to comply with the production and quality specifications stipulated or referred to in the Publisher’s Ad Guidelines.
6. Publisher’s right not to Publish
Publisher has the right to insert advertising within the Magazine, Publication or other Time Out Digital Product at its sole discretion. Any condition or restriction included in contracts, orders or copy instructions involving the placement of advertising within the Magazines, Publication or other Time Out Digital Product such as positions, facings, editorial adjacencies or other requirements will be treated as positioning requests only and cannot be guaranteed. The Publisher’s inability or failure to comply with any such conditions shall not relieve the Advertiser or Agency of the obligation to pay for such advertisements. Publisher has the right at its discretion to decline to publish, or to omit, suspend, alter, edit, crop, resize and reformat or change the position of any Advertisement otherwise accepted for publication, however the Publisher will use reasonable efforts to comply with the specified written requirements of the Advertiser. The Publisher does not warrant the date of insertion of the Advertisement into the Publication or the quality of the colour or mono reproduction of the Advertisement.
7. Submission Terms
7.1 The Advertisement must be received by the Publisher no later than the Copy Deadline on the Copy Date and the Advertiser shall supply the Advertisement in such form as the Publisher shall specify in the Ad Specifications. It is the responsibility of the Advertiser to check the correctness of the Advertisement. The Publisher accepts no liability for any error in any Advertisement. This includes and is not restricted to Advertisement/editorial positioning, impositioning, colour matching, typographical and pictorial errors, binding, registration, plate movements, ink quality, paper stock, as well as markings caused by the printing, finishing, binding or delivery process.
7.2 No re-insertion, refund or adjustment to the cost will be made where the error, misprint, or omission does not materially detract from the Advertisement. In the event that the material submitted to the Publisher does not comply with the Ad Specifications or as set out in clause 7.1, the Publisher shall be permitted either to reject or to amend the Advertisement as stated in these Terms.
7.3 In the event that the Advertiser submits the Advertisement to the Publisher after the Copy Deadline, the Publisher shall at its discretion be entitled either to a) reject such Advertisement, in which case it shall be deemed cancelled for the purpose of these Terms, or b) accept the same for inclusion in the Publication at a later date. The Advertiser shall not receive a refund in the circumstances of either a) or b) herein and shall be invoiced for the full Advertisement Rates as set out in the IO.
8. Cancellation Terms and Termination
8. 1 Unless otherwise set forth in the IO, Advertiser may not cancel any print advertising purchased pursuant to such IO after the IO close date unless expressly permitted in writing by Publisher. No changes shall be effective unless in writing and signed by both parties. Advertiser is responsible for delivering Advertisements on time as provided in the IO or otherwise specified by Publisher. Advertisements will not be deemed delivered unless in a format specified or otherwise approved by Publisher. In the event Advertisements are delivered after the Copy Deadline, Advertiser is still responsible for the media purchased pursuant to the IO. Except as otherwise stated in the IO or as mutually agreed upon by the parties, if the Advertisements are received late, Publisher may run a Public Service Announcement (“PSA”) or house advertisement as a replacement until the creative is received. If cancellation is permitted by Publisher as set forth above, Advertiser will be responsible for a fee in the amount of 50% of the applicable advertising fee provided for in the IO for cancelling an order past the Ad Close Date, but prior to the Copy Deadline. In the event that Advertiser cancels an order after the Copy Deadline and the Copy Date, Advertiser will be responsible for a fee in the amount of 100% of the applicable advertising fee provided for in the IO. For the avoidance of doubt, sponsorships and custom content may not be cancelled at any time unless otherwise agreed to in writing.
8.2 The Publisher shall not be bound by any notification of cancellation unless it is in writing and received by the Publisher prior to the Cancellation Date.
8.3 Any cancellation instruction, whether given prior to or after the Cancellation Date shall not (notwithstanding the fact that it may be accepted by the Publisher) affect the Advertiser's obligation to pay for the Advertisement or Creative Solution. Any properly incurred fees, third party fees, reasonable irretrievable loss of revenue and expenses in respect of the Insertion Order shall be invoiced by Publisher and payable in accordance with clause 4.2
8.4 The Publisher may treat as a cancellation and shall be entitled to terminate this Agreement forthwith on the giving written notice by email or letter to the Advertiser and further reserves the right in its sole discretion to refuse to publish any Advertisement where:
a) the Advertiser ceases, or threatens to cease, to carry on its business;
b) the Advertiser has failed to pay any sums due to the Publisher on or before the due date,
c) the Advertiser (i) becomes insolvent, (ii) is generally unable to pay, or fails to pay, its debts as they become due, (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business; or;
d) the Publisher has reasonable grounds to believe that the Advertiser is in breach of the Agreement and such breach (if capable of remedy) continues for fourteen (14) days after receipt of a notice from the Publisher specifying the breach and requiring the same to be remedied.
e) any breach of these Terms occurs.
8.5 The Advertiser shall cooperate with Publisher and shall provide to Publisher, at Publisher’s request, any information that Publisher may reasonably require to enable it to deliver the Item in accordance with the Insertion Order’s Campaign Start Date. If an action by the Advertiser results in a delay to the Campaign Start Date which causes: (i) a delay to the delivery of the Advertisement and/or the Creative Solution or affects the Item in any way then Publisher reserves the right to: (a) amend the Campaign Start Date in Publisher’s sole discretion or (b) terminate the Insertion Order and invoice the Advertiser for any properly incurred fees, third party fees, reasonable irretrievable loss of revenue and expenses in respect of the relevant Item, such invoice to be paid in accordance with clause 4.
8.6 Any series discounts or reduced advertising rates granted by the Publisher for multiple advertisements apply only in the event that, and are conditional upon, all advertisements contemplated (at the time that the fees were agreed) being placed. In the event that the Advertiser cancels or does not conclude any series or multiple advertisements, the Advertiser relinquishes the right to the discount or reduced rate and Advertisements will be charged and paid for at the otherwise applicable rate, or if none is specified, the full rate.
9.1 All intellectual property rights in any artwork, copy, photographs, Creative Solution or other material which originated from the Publisher or its employees or contractors, agents or associated companies, or which has been created or altered by the Publisher in re-working the Advertisement, shall vest in the Publisher. All intellectual property rights in Advertisement or other material which originated from the Advertiser, Agency or their respective employees or contractors, agents or associated companies, shall vest in the Advertiser.
9.2 To the extent that any intellectual property rights are not automatically vested in the Publisher, the Advertiser assigns to the Publisher all such rights in any copy, artwork, photographs, Creative Solution or other materials comprised in any Advertisement including without limitation, copyright in photographs previously submitted to the Publisher and submitted in future, whether or not such photographs are in existence at the Order Date.
10.1 The Advertiser warrants that:-
a) in relation to an Advertisement or Creative Solution, the Advertiser contracts with the Publisher as principal notwithstanding that the Advertiser may be acting directly or indirectly as an advertising agent or media buyer or in some other representative capacity;
b) the reproduction and/or publication of the Advertisement (or any content provided by the Advertiser) by the Publisher as originally submitted or as amended pursuant to clause 7 will not: (i) breach any contract or (ii) infringe or violate any copyright, patent, trademark, trade secret or other intellectual property right of any third party, and Advertiser is solely responsible for securing, maintaining and paying for all such rights and licenses which, for the avoidance of doubt, includes all necessary copyright (including without limitation all royalties payable for the copyright in any underlying works embodied in the Advertisement and other related rights), or (iii) render the Publisher liable to any proceedings whatsoever in any jurisdiction;
c) to the extent that it is intended to be considered as factual, any information supplied in connection with the Advertisement is accurate, complete and true;
d) in respect of any Advertisement submitted for publication which contains the name or pictorial representation (photographic or otherwise) of any living person and/or any part of any living person and/or any copy by which any living person is or can be identified, the Advertiser has obtained the consent of such person to make use of their name, representation and/or copy;
e) in relation to any Advertisement related to financial services and/or products, such Advertisement shall comply with all applicable laws, rules, and regulations, including but not limited to Regulation DD, the implementing regulation for the Truth in Savings Act (TISA), and §5(a) of the Federal Trade Commission Act, GLBA and any other applicable legislation or guidelines provided by the Consumer Financial Protection Bureau (CFPB);
f) the Advertisement shall not contain: (i) content that is an invasion of privacy, degrading, defamatory, libelous, unlawful, profane, obscene, pornographic, hate material, or discriminatory; (ii) content that promotes any illegal activity including without limitation the promotion of gambling where prohibited, illegal substances, software piracy, or hacking; (iii) content that infringes on the personal rights, trademark, service mark, trade dress, trade name, logo, publicity right, copyright, patent rights, or any other intellectual property right of any third party; or (v) content that Agency knows to be false or misleading;
g) all advertising copy submitted to the Publisher is legal, decent, honest and truthful and complies with all applicable laws, rules, regulations and any self-regulatory guidelines.
h) If the Advertiser has emails as part of its campaign in the IO, it must comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) and any applicable state anti-spam laws;
10.2 Advertiser is solely responsible for any liability whatsoever arising out of any content of the Advertisement.
10.3 THE ADVERTISER, NOR ANY OTHER PERSON ON SUCH PARTY'S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) THE ADVERTISER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE PUBLISHER.
11.1 Advertiser and/or Agency, on behalf of Advertiser, represents and warrants that publication by Publisher, in any currently existing or future formats or media, of any Advertisement submitted by or on behalf of Advertiser will not (i) violate any right of any third party, including, but not limited to, any intellectual property right or right of publicity or privacy, (ii) be false, misleading, deceptive, malicious or defamatory, (iii) violate industry codes or rules by which Advertiser may be bound and all applicable laws, rules, regulations and governmental or administrative order (including, without limitation and to the extent applicable, OBA self-regulatory principles (i.e. IAB, DAA, MMA) , GLBA, FTC Act, FTC Guidelines, CAN-SPAM, Children Advertising Review Unit and the Children’s Online Privacy Protection Act in connection with any information collected by Advertiser); (iv) contain any viruses, worms, malware or other code or devices capable of disabling or interfering with any computer systems or software or any other software designed to covertly gather user information or behavior or which collects or uses data, content or information from Publisher’s systems; and/or (v) contain unauthorized embedded interactive triggers or other software that automatically diverts users from any Publisher site/syndication location or service. In addition, Advertiser and/or Agency on behalf of Advertiser represents and warrants that: (i) all Advertising Materials and Media Company Advertising Materials are accurate and that all claims contained therein have been substantiated, and that it is the sole responsibility of Advertiser and/or Agency on behalf of Advertiser to review such Advertising Materials and Media Company Advertising Materials to confirm same; (ii) the inclusion in Media Company Advertising Materials of the name, voice, likeness, signature, performance, persona or other personal attributes of any individuals secured by Advertiser or Agency on behalf of Advertiser shall not constitute a misappropriation or violate any right of publicity or privacy or the Lanham Act or similar rights of such individuals; (iii) any personally identifiable information (“PII”) that Advertiser obtains, provides, uses or otherwise comes to possess under an IO shall be collected, stored, maintained, transferred, and discarded via adequate security protections, procedures and protocols, and will not be disclosed to the public or any unauthorized third parties; (iv) Advertiser shall comply with all applicable notification laws and requirements in the event PII in its possession is improperly disclosed to the public, or is otherwise affected by a security failure; and (v) all email communications Advertiser creates or sends pursuant to or as a result of this IO shall comply with all state and federal privacy and other applicable laws and regulations. Advertiser shall indemnify, defend and hold Publisher and its officers, directors, employees, stockholders, contractors, representatives and agents (the “Publisher Indemnitees”) harmless against any and all claims, demands, liabilities, costs or expenses (including, but not limited to, reasonable attorneys’ fees) (“Costs”) incurred by the Publisher Indemnitees in connection with or arising out of a breach or allegation which if true would constitute a breach of any of the representations, warranties or covenants of Advertiser contained herein; (x) the copying, printing, publication, display, performance, distribution or transmission of any Advertising Materials; (y) the loss, theft, use or misuse of any credit/debit card or other payment, financial or personal information; and/or (z) the products and/or services promoted, sold, presented and/or contained in the Advertising Materials. In addition, in the event the Publisher has agreed to provide content or sweepstakes management services, email design or distribution or other promotional services in connection with an advertising commitment by Advertiser or Agency (“Value Added Services”), all such Value Added Services are performed on the condition that Advertiser shall indemnify, defend and hold harmless the Publisher Indemnitees from any and all Costs incurred by the Publisher Indemnitees and arising out of the publication, use or distribution by the Publisher Indemnitees of any materials, products (including without limitation prizes) or services provided by or on behalf of Advertiser or Agency in connection with such Value Added Services. Notwithstanding anything herein or in the IAB 3.0 Terms to the contrary, (i) in the event that Publisher participates in the creation of Advertisement including without limitation any Advertisement, Publisher will indemnity Advertiser in connection with potential claims relating thereto only to the extent it has agreed to do so in writing; and (ii) contribution to, creation or approval of the Advertiser by Publisher shall not limit Advertiser’s indemnification obligations herein.
11.2 Limitation of Liability
PUBLISHER SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH ANY ADVERTISEMENT, CREATIVE SOLUTION OR CUSTOM EVENT, ITS SERVICES OR ANY OTHER MATTER RELATING TO OR ARISING FROM AN INSERTION ORDER. IN THE EVENT OF ANY CLAIM AGAINST PUBLISHER HEREUNDER, PUBLISHER’S SOLE LIABILITY, AND ADVERTISER’S SOLE REMEDY, SHALL BE LIMITED, AT PUBLISHER’S OPTION, TO (A) PAYMENT OF A SUM EQUAL TO THE ADVERTISEMENT RATE/FEE PAYABLE BY ADVERTISER TO PUBLISHER FOR THE RESPECTIVE ITEM AS SET OUT IN THE INSERTION ORDER GIVING RISE TO THE CLAIM, OR (B) AN ADVERTISING CREDIT WITH VALUE EQUAL TO THE LESSER OF ACTUAL DAMAGES OR AMOUNTS PAID BY ADVERTISER HEREUNDER FOR THE SPACE ATTRIBUTABLE TO THE APPLICABLE ERROR/OMISSION AND, MOREOVER, PUBLISHER SHALL HAVE NO LIABILITY UNLESS THE ERROR/OMISSION IS BROUGHT TO PUBLISHER’s ATTENTION NO LATER THAN 3 BUSINESS DAYS AFTER THE ADVERTISEMENT OR CREATIVE SOLUTION IS FIRST PUBLISHED OR CUSTOM EVENT IS HELD.
PUBLISHER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITATION OF THE FOREGOING, PUBLISHER SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM DISPLAYING THE ADVERTISING MATERIALS OR THAT THE ADVERTISEMENT, CREATIVE SOLUTION OR CUSTOM EVENT WILL BE ERROR-FREE. Without limiting the generality of the foregoing, Publisher disclaims all warranties and guarantees with respect to the Publication including without limitation, warranties and/or guarantees relating to (a) the positioning or placement of advertisements;(b) advertising results; and (c) the accuracy of audience data, including, but not limited to, audience demographic data, audience size/reach data. In addition to the disclaimers set forth in this clause, Publisher disclaims all warranties and guarantees with respect to its Publication, Time Out Digital Products, including without limitation warranties and/or guarantees relating to: (i) the availability, uptime and delivery of any impressions and/or advertisements thereon; and (ii) the quantity, quality or frequency of clicks, opens or click-through rates.
11.4 Any complaint, claim or query (other than in respect of any error covered by the provisions of clause 7 or 11. 1 above shall not affect the liability of the Advertiser in relation to any payment due to the Publisher.
11.5 In no event shall the Publisher be liable for any tortious loss (including negligence and negligent misstatement), misrepresentation, breach of statutory duty or for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise and whether or not the Publisher is advised of the possibility of loss, liability, damage or expense) including but not limited to:
a) loss of revenue;
b) loss of actual or anticipated profits (including for loss of profits on contracts);
c) loss of the use of money;
d) loss of anticipated savings;
e) loss of sales or business;
f) loss of operating time or loss of use;
g) loss of opportunity;
h) loss of or damage to goodwill or reputation;
i) loss of, damage to or corruption of data; or
j) any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in clauses 11.3 (a)- (j)).
11.6 The Publisher will not be liable for any loss of copy, artwork, photographs or other materials, which the Advertiser warrants that it has retained in sufficient quality and quantity for whatever purpose it may require.
11.7 Where the Advertiser is an advertising or other agent instructed by a third party, the Advertiser warrants that it is authorized by such third party to sign the Insertion Order with the Publisher and accept these Terms on behalf of the third party and shall indemnify the Publisher against any claims made by such third party against the Publisher arising from its publication of the Advertisement.
12. Destruction of advertising material
The Publisher reserves the right to destroy all materials relating to the Advertisement that have been in its custody for twelve months and may exercise this right without notice to the Advertiser. The Advertiser must provide explicit written instructions or arrangements if they wish their material to be held in storage or returned.
13. Confidentiality and Data Protection
13.1 The Advertiser undertakes to the Publisher:
a) To treat all information provided by the Publisher in connection with the Publication, the Advertisement and/or in relation to the Publisher’s business as strictly confidential; and
b) Not under any circumstances to share any such information with any third party (including, without limitation, the press/news/media); and
c) To refer all press/news/media enquiries concerning the Publication, the Advertisement and/or the Publisher's business to the Publisher.
13.2 The obligation set out in the preceding sub-clause shall not apply to any information which:
a) Prior to its receipt from the Publisher was lawfully in the possession of the Advertiser and at its or their free disposal; or
b) Is subsequently disclosed to the Advertiser without any obligations of confidence by a third party who has not derived it directly or indirectly from the Publisher; or
c) Is or becomes generally available to the public through no act or default of the Advertiser or its or their respective agents, employees, officers and representatives; or
d) Is required by law to be disclosed.
13.3 If either party acquires any personal information relating to any of the personnel of the other party or any other individual (“Personal Data”) as a result of the services provided pursuant to these Terms that party shall:
a) only process the Personal Data in accordance with the instructions of the other party and at all times in accordance with applicable laws including but not limited to the FTC Act, terms and standards CAN-SPAM and the Electronic Communications Privacy Act (ECPA).
14. Applicability of the Terms
14.1 These Terms shall apply to each contract for the placement of an Advertisement and/or Creative Solution together with such additional matters (if any) as may be set out in the Rate Card or any additional terms and conditions agreed between the parties. In the event of a discrepancy between the provisions of these Terms, terms included in the Rate Card and explicit terms in the Insertion Order, the provisions in the Insertion Order shall prevail and the conditions set out in the Rate Card shall prevail.
14.2 These Terms supersede and replace all the Publisher's previous terms and conditions and all documentation previously issued by the Advertiser purporting to set out its terms and conditions.
15. Additional terms for Creative Solutions (this clause 15 is only applicable if Creative Solutions are sold pursuant to IO)
15.1 Research as part of Creative Solutions
If the Creative Solution requires Publisher to conduct research for the purposes of developing a claim to be used in the Creative Solution, the following terms apply: Research will be conducted via a series of questions regarding Advertiser’s product posed to selected readers of Publisher. In the event that sufficient numbers of readers respond to the questions to generate statistically valid results (meaning a minimum of 200 respondents reply to a follow-up survey about the product and at least 101 of those respondents agree with the proposed claim), and the answers to the questions result in a claim that is mutually acceptable to Publisher and Advertiser for use in advertising (a mutually acceptable claim referred to as the “Claim”), then the parties will engage in the promotional activities as agreed in Special Conditions in the IO. Publisher makes no representations or warranties that sufficient numbers of readers will respond, or that the questions will result in a Claim. Advertiser acknowledges that Publisher shall not be required to approve for use as a proposed Claim any material that Publisher believes, in its reasonable discretion, fails to accurately reflect the results of the research. Advertiser further acknowledges and agrees that if the research results in an approved Claim, the basis for the Claim will be described in the Creative Solution as “a survey of [number] Publisher opt-in subscribers who tested [product]”. In the event that the research does not result in a Claim, Advertiser shall have the option to use verbatim statements about the product from one or more survey participants, provided the participants agree to use of their statements as evidenced by a written release, and the statements reflect the sentiment of a majority of the respondents. Advertiser shall also have the right to include verbatim statements (subject to the foregoing restrictions) in any Creative Solution which also contains a Claim. If the research does not result in a Claim or verbatim statements satisfactory to Advertiser, then the Advertiser does not have to use it, however the Advertiser is still liable to purchase the advertising described in the IO. In the event that the research does result in a Claim, Advertiser will cease all use of the Claim upon termination of this Agreement.
If the Creative Solution requires the Creative Solution to contain statements about the attributes of Advertiser’s product (“Product Attribute Statements”), including, without limitation, statements comparing Advertiser’s product to those of its competitors or statements attesting to the efficacy of Advertiser’s product as supported by research, then all such Product Attribute Statements shall be supplied by Advertiser, and Publisher shall have no obligation to participate in the crafting of such Product Attribute Statements.
Advertiser will be responsible to ensure that the content of the Creative Solution complies in all applicable laws.
“Change in Scope” means an amendment to the delivery items/assets and/or deadline as set out in a written document required due to delay caused by Advertiser or circumstances beyond the Publisher’s control. Changes to the scope of work will be reviewed between Publisher and Advertiser and approve changes documented as between the parties. Change of Scope may impact the project schedule and/or budget and no liability will attach to Publisher. Before any changes are made, Advertiser must agree and sign-off on changes.
Advertiser must provide all necessary brand guidelines and high res assets (logos, product shots, social images etc.) by dates required for production of Creative Solution. If additional product shots are required, or asset delivery deadline is not met this may incur a Change in Scope and/or delay in timing.
Advertiser will select products to be incorporated within co-branded content and send all required products to Publisher by dates required for production. If product delivery deadline is not met this may incur a delay in timing and Change in Scope.
Advertiser will define any additional watch-outs/things Publisher absolutely cannot include within content prior to production.
Advertiser will define any additional product benefits or branding requirements Publisher must incorporate into content prior to production.
Advertiser will provide any relevant press releases.
If Advertiser wants to use the Creative Solution beyond the terms listed in Clause 3.3 of these Terms, additional licensing costs will apply.
If Advertiser publishes content on their sites there are 3 requirements – 1. Index search must be turned off. 2. If there is a spot for a canonical URL within their CMS, the full URL to the content must be entered 3. There needs to be a visible text link that credits publisher source and includes full URL to original content post.
Content must not be syndicated or distributed beyond license terms in clause 3.3.
Advertiser will consolidate all feedback from all key business partners and provide rationale where applicable.
All comments are due on the dates noted in the timeline; subsequent comments or changes will be considered out of scope and may be addressed via a change in scope.
15.3 Co-Branded Content
Assumes 1-2 review rounds for concepts with headlines, up to 5 days (depending on timeline; includes any legal approval.) Any delays in feedback or additional changes may require a Change In Scope or delay in launch due to additional production fees and timing.
Assumes 2 reviews of co-branded content, up to 5 days each (depending on timeline; includes any legal approval). Any delays in feedback or additional changes may require a Change in Scope or delay in launch due to additional production fees and timing.
Logo Treatment will be pursuant to Publisher’s Native Advertising Guidelines;
All revisions will be at the Publisher’s editor’s discretion
Level of Advertiser integration: 30% unless otherwise negotiated
Non-competing brands may be featured within any Co-Branded content.
15.4 Sponsored Content (editorial content, created around approved theme or re-purposed existing content
Assumes 1-2 review rounds for headlines and/or repurposed content only. Advertiser will not have approvals over final content, photo shoots, video, or social. Any additional feedback may require a Change in Scope or delay in launch due to additional production fees and timing.
Content post tagging will be in accordance with Publisher’s Native Advertising Guidelines.
15. 5 Co-Branded Social:
Facebook Posts must drive to Publisher site or Publisher asset and cannot drive to Advertiser site/asset.
Instagram posts will not click out to any destination.
Sponsored posts will be tagged and displayed in accordance with Time Out’s Native Advertising Guidelines.
Copy must be created in house and Instagram photos must be custom shot in house, or an editorial image from Publisher. Twitter and FB Posts may include sponsor-provided images at editor's discretion.
Advertiser may be mentioned in Twitter and Instagram posts with @ symbol.
Advertiser may include 1 branded hashtag for Instagram and Twitter (may include up to 2 for Instagram)
All social posts must have images included with copy.
Assumes that any editor-approved influencer social takeovers on Publisher-owned channels will be on behalf of the Advertiser and that influencers and Advertisers will promote the takeover up to a week in advance.
15. 6 Co-Branded Photo Shoot:
Advertiser will approve photo concepts during the standard review process of 2 rounds seen in above Co-Branded Content timing. Any delays in feedback or additional changes resulting in re-shoots or review rounds may require a Change in Scope or delay in launch due to additional production fees and timing.
All experts and models will be selected by Publisher, unless a special guest or collaboration was approved in the pre-sale process. Advertiser will not receive approval. Advertiser will provide reasonable guidelines for selecting models and experts if desired (Ex. diverse, natural, no tattoos etc.).
All clothing and styling will be selected by Publisher, unless styling and clothing specifications was approved in the pre-sale process. Advertiser will not receive approval. Advertiser will provide reasonable guidelines for styling and clothes if desired.
Advertiser attendance on set can be arranged prior to shoot if Advertiser requests.
All travel & lodgings to and from shoots is at the Advertiser’s expense.
48 hours’ notice is required to cancel or postpone a shoot. If notice is not received, full shoot day costs for crew still applies.
Advertiser to supply multiple approved product/products featured
All copy will be at the editor's discretion
15. 7 Co-Branded Video:
Publisher will select all production experts (i.e. directors of photography/audio operators/wardrobe stylists/hair make-up artists), unless a special guest or collaboration was approved in the pre-sale process. Advertiser will not receive approval.
Advertisers will be presented with initial video creative and then have 1 round of review for more detailed script approval (refer to production timeline).
Advertiser attendance on set is required when shooting product (if Advertiser cannot attend, an Advertiser representative (e.g. Agency rep) who is authorized to approve product shots will need to attend). All travel & lodgings to and from shoots is at the Advertiser’s expense.
48 hours’ notice is required to cancel or postpone a shoot. If notice is not received, full shoot day costs for crew still applies.
Advertiser to supply multiple approved product/products featured
Sponsored videos will be tagged and displayed in accordance with Publisher’s Native Advertising Guidelines.
15. 8 Co-Branded Contests, Sweepstakes, Sampling Programs
If the Advertiser requests that the Publisher include a marketing opt-in for the Advertiser (“Marketing Opt-In”), in respect of a Competition, the Advertiser shall provide the wording for the marketing opt-in that is compliant with all applicable laws, (“Applicable Laws”). The Publisher shall compile a list of the information submitted in respect of the Marketing Opt-In and shall securely transfer the information to the Advertiser in a format chosen by the Publisher in the Publisher’s sole discretion (“Marketing Data”). Upon transfer of the Marketing Data the Advertiser will control the Marketing Data. The Advertiser warrants that the Marketing Data will be used only in accordance with the Marketing Opt-In and for no other purpose. The Advertiser will indemnify the Publisher for all Advertiser unauthorised uses or breaches of Applicable Laws with respect of the Marketing Data. The Publisher will delete the Marketing Data after the Advertiser has confirmed receipt in accordance with the Publisher’s data retention policy.
All competitions will be subject to Publisher’s standard competition terms and conditions with one round of review for approval by the Advertiser.
Advertiser warrants that:
(i) the prize will be in accordance with all applicable laws;
(ii) the prize will be fulfilled by the Advertiser in accordance with Publisher’s standard competition terms and conditions it will provide the Publisher with any specific terms and conditions that apply to the prize seven (7) business days prior to competition start date.
(iii) entry mechanisms for competitions will be compliant with all applicable laws.
Alcohol related prizes will not be accepted by Publisher.
Advertiser will provide all prizing and related costs within the agreed upon time frame.
If sampling is included, assumes Advertiser will provide all samples within the agreed upon time frame. Assumes that Publisher will fulfil all sampling programs.
Assumes Publisher will create all rules,
16.1 Editorial policy: The Publisher maintains a totally impartial editorial policy and it is agreed and understood that Advertisers are not entitled or favoured for an editorial mention in exchange for taking an Advertisement in the Publication.
16.2 Social media policy: Social media posts by Publisher for Advertiser (including but not limited to Facebook, Instagram and Twitter) are subject to Publisher editorial guidelines and posts will in all circumstances link to Time Out Digital Products.
16.3 Replies to Advertisement: While reasonable endeavours will be made to forward to the Advertiser, as it may direct or as soon as possible after receipt by the Publisher, any replies to the Advertisement, the Publisher accepts no responsibility in respect of any loss or damage alleged to have arisen through delay in forwarding or omitting to forward such replies.
16.4 Subcontracting: The Publisher may sub-contract to any other person the performance of any of the obligations undertaken by it and exercise any of the rights granted to it.
16.5 Force Majeure, Delay and Non-performance: The Publisher shall not be liable to the Advertiser for any delay or non-performance of its obligations under these Terms to the extent that its performance is interrupted or prevented by any act or omission beyond its reasonable control. Such delay or non-performance shall not constitute a breach of these Terms and the time for performance shall be extended by a period equivalent to that during which performance is so prevented. Notwithstanding any such delay or non-performance of its obligations under these Terms, the Publisher shall be entitled to charge the Advertiser the Advertisement Rates and any other sums due to the Publisher in full following completion of its obligations under these Terms.
16.6 Except as otherwise stated in these Terms, the rights and remedies of each party under these Terms:
a) are in addition to and not exclusive of any other rights or remedies under these Terms or the general law; and
b) may be waived only in writing and specifically.
16.7 Delay in exercising or non-exercise of any right under these Terms is not a waiver of that or any other right. Partial exercise of any right under these Terms shall not preclude any further or other exercise of that right or any other right under these Terms. Waiver of a breach of any term of these Terms shall not operate as a waiver of breach of any other term or any subsequent breach of that term.
16.8 Severance: If any provision of these Terms is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:
a) the legality, validity or enforceability in that jurisdiction of any other provision of these Terms; or
b) the legality, validity or enforceability in any other jurisdiction of that or any other provision of these Terms.
Whilst the parties consider the provisions contained in these Terms reasonable, having taken independent legal advice, if any one or more of the provisions are adjudged alone or together to be illegal, invalid or unenforceable, the parties shall negotiate in good faith to modify any such provision(s) so that to the greatest extent possible they achieve the same effect as would have been achieved by the invalid or unenforceable provision(s)
16.9 No Amendment. These Terms contain the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. The Parties may not amend this Agreement except by written instrument signed by the Parties.
16.10 No Third Party Beneficiaries: A person who is not a party has no rights to enforce, or to enjoy the benefit of, any provision of these Terms.
16.11 Governing law and jurisdiction: These Terms and any dispute or claim arising out of or in connection with it (including any non-contractual claims or dispute) shall be governed by and construed in accordance with the laws of New York, NY. In relation to any legal action or proceedings (a) arising out of or in connection with these Terms or its implementation or effect or (b) relating to any non-contractual obligations arising out of or in connection with these Terms, each of the parties irrevocably submits to the exclusive jurisdiction of the courts of New York County, New York and waives any objection to proceedings in such courts on the grounds of venue or on the grounds that proceedings have been brought in an inappropriate forum.
16.12 Notice: All notices should be directed to firstname.lastname@example.org and the Time Out representative as appears on the IO. All notices to Advertiser shall be directed to the address on the IO.