These Terms and Conditions apply to the program and services as defined in the Contract, Statement of Work, Purchase Order and/or Insertion Order hereafter (“Contract”) between Haymarket Media, Inc., a New York Corporation (“HMI”) and the Client.
Client’s Representations and Warranties
The Client represents and warrants that the Advertisement:
- does not contradict any act of law, statue ordinance or regulation, including, without limitation, law and regulations governing false advertising or unfair competition;
- infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy;
- is not in any way libelous or defamatory of any other party’s rights;
- is legal, decent, honest and truthful; and
- is not an infringement of the American Association of Advertising Agencies.
Client hereby grants HMI the right and a non-exclusive license to use Client’s material, including trademark for the purposes required under the applicable Contract subject to these Terms and Conditions in order for HMI and other third parties to promote, fulfill their obligations or exercise their rights.
The Client hereby agrees to indemnify, defend, and hold harmless HMI against any and all actions, proceedings, claims, demands, damages and costs (including reasonable attorney and legal costs) incurred based upon a breach of any of the foregoing representations and warranties or in connection with any claim arising from or related to any advertisement or the publication or distribution of the advertisement.
HMI cannot be held responsible for alterations or corrections to proofs, if returned after the specified date or not confirmed in writing. No responsibility is taken for the accuracy of copy not given in writing to HMI.
Advertising materials are required no later than two (2) days after closing date for space reservation, and should be submitted in compliance with the brand specification sheet.
SWOP-certified color proofs should be provided for color and content at 100% of finished size.
HMI cannot be responsible for final printed color or content without a proof that accurately represents the submitted digital file.
Artwork and/or photographic materials are submitted to, and used by, HMI entirely at the risk of the person by whom, or on whose behalf, they were submitted. Unless otherwise arranged, HMI reserves the right to return or dispose of such artwork and/or photographic materials if not collected within six (6) months of their receipt by HMI, and any return carriage costs must be paid by such person.
Special positions will be given only if agreed by HMI in writing and at an additional charge. Agreement will be specific to an identified Client. No other client of an advertising agency may take the position without prior written consent of HMI.
Late ad files
If, following an accepted order for space, and Client’s copy instructions are not received by HMI’s material deadline date, Client is not entitled to revisions or approval by HMI. HMI reserves the right to print any previously supplied ad file received from the Client. If Advertising materials are not received by the Contract start date, HMI will begin to charge the Client on the Contract start date on a pro rata basis based on the full Contract amount, excluding portions consisting of performance-based, non-guaranteed inventory, for each full day the Advertising materials are not received. If Advertising materials are late, HMI is not required to guarantee full delivery of the Contract. HMI and Client will negotiate a resolution, if HMI has received all required Advertising materials in accordance with the Materials section of the terms and conditions, but fails to commence a campaign on the Contract start date.
Payment is due thirty (30) days from invoice, unless otherwise stated on the Contract. If Client fails to make a payment required by the payment terms of the Contract, HMI may terminate the Contract without further notice and without obligation to refund monies previously paid. In the event HMI refers to Client’s account to a collection agency or attorney due to non-payment, Client will be liable for all of HMI’s costs and expenses incurred in connection with Client’s non-payment, including, without limitation, court costs and reasonable collection or attorney fees.
Cancellation by Client
Cancellations of advertising space must be submitted to the publisher in writing sixty (60) days prior to the closing date for the issue in which the advertisement is booked to run. If cancelled less than sixty (60) days prior to the closing date, the Client will be charged for the total amount of the Contract, regardless of the date of the ad placement. In addition, materials received after published deadlines are subject to a late materials fee and may risk forfeiture of space.
Cancellation by HMI
HMI reserves the right to reject or cancel advertising that does not uphold to advertisement standards or for any other reason, even if the advertising has been published previously by HMI.
Each Party will hold the Confidential Information of the other Party in strict confidence and treat that information with the same degree of care as it uses in dealing with its own confidential information, but no less than a reasonable degree of care. Each Party will use the other Party’s Confidential Information solely for the purposes of the Contract. Confidential information includes, but not limited to, business plans, strategies, and trade secrets of either Party. The details of the Contract or information should be identified as confidential or by its nature would reasonably be understood to be confidential. Either Party may share such Confidential Information with its employees, directors, agents, or third-party contractors who need to know it and if they have agreed with either Party in writing to terms at least as restrictive as those in the Contract. Other than as allowed in the preceding sentence, each Party will not disclose or make such Confidential Information available to any third party, except as specifically authorized by the Disclosing Party in writing. The Receiving Party’s obligations do not apply to information that: (a) was known to them without restriction before receipt from the Disclosing Party; (b) is publicly available through no fault of the Receiving Party; (c) is rightfully received by the Receiving Party from a third party without a duty of confidentiality; or (d) is independently developed by the Disclosing party without reference to any Confidential Information as demonstrated by written records. The Receiving Party may disclose Confidential Information when compelled to do so by law, but only if it: (a) promptly provides prior notice to the Disclosing Party and an opportunity for the Disclosing Party to seek a protective order, and (b) discloses only the minimum amount of Confidential Information that is necessary to comply with the required disclosure. Upon the Disclosing Party’s written request, the Receiving Party will promptly return all Confidential Information and copies, or certify in writing that it has destroyed all such materials.
HMI is not liable for delays in delivery or non-delivery in the event of Acts of God defined as: laws or regulations or acts of any government or agency thereof; judicial action; inability of a third-party manufacturer to supply; war, terrorism, or civil commotion; destruction of production facilities and/or materials; fire; flood; explosions; earthquake or storm; labor disturbances; failure of public utilities or common carrier; or any other causes beyond the reasonable control of HMI affecting production or delivery in any manner. Under no circumstances shall HMI be liable for any indirect, incidental, special or consequential damages (including, without limitation, loss of profit or damages) of any Client.
Compliance with Laws, Rules, and Regulations
Client and HMI agrees that any and all matters pertaining to the performance of the services shall be in compliance with all applicable local, state, federal laws, rules and regulations.
These Terms and Conditions shall in all respects be governed, construed and interpreted in accordance with the laws of the State of New York. Venue and exclusive jurisdiction of any dispute arising out of these Terms and Conditions shall be in courts of competent subject matter jurisdiction in New York, New York.