“Ad” means any advertisement provided by Advertiser or Agency on behalf of an Advertiser.
“Advertiser” means the direct Advertiser or Advertiser for which Agency is the agent under an applicable IO.
“Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
“Agency” means the advertising agency listed on the applicable IO.
“Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions).
“IO” means a mutually agreed Insertion Order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency or Advertiser.
“Media Company” means the HVAC Insider Online.
“Media Company Properties” are websites specified on an IO that are owned, operated, or controlled by Media Company.
“Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, policies regarding consistency with Media Company’s public image, other editorial or advertising policies, and Advertising Materials due dates.
“Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney.
“Site” or “Sites” means Media Company Properties and Network Properties.
“Terms” means these Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Third Party Ad Server” means a Third Party that will serve and/or track Ads.
“Written” means paper, fax, or e-mail communication.
I. INSERTION ORDERS AND INVENTORY AVAILABILITY
- IO Details. From time to time, Media Company and Advertiser or Agency may execute IOs that will be accepted as set forth in Section I (b). As applicable, each IO will specify: (i) the type(s) and amount(s) of Deliverables, (ii) the price(s) for such Deliverables, and (iii) the start and end dates of the campaign. Other items that may be included are, but are not limited to, reporting requirements, any special Ad delivery scheduling and/or Ad placement requirements, and specifications concerning ownership of data collected.
- Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Advertiser or Agency within three (3) business days of receipt of an IO signed by Advertiser or Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be deemed the earlier of (i) written approval of the IO by Media Company and Advertiser or Agency, or (ii) the display of the first Ad impression by Media Company, unless otherwise agreed on the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless approved in writing by both Media Company and Advertiser or Agency.
- Revisions. Revisions to accepted IOs must be submitted in writing at least ten (10) business days prior to the start of the ad campaign and acknowledged by the other party in writing.
I. AD PLACEMENT AND POSITIONING
- Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions,and, except as set forth in Section VI (c), will create a reasonably balanced delivery schedule. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions will be approved by Advertiser or Agency in writing.
- Changes to Site. Media Company will use commercially reasonable efforts to provide Advertiser or Agency at least ten (10) business days prior notification of any material changes to the Site that would materially change the target audience or materially affect the size, appearance or placement of the Ad specified on the applicable IO. Should such a modification occur Advertiser or Agency may cancel the remainder of the affected placement without penalty within the 10-day notice period or advise Media Company that revised Advertising Materials will be provided. If Media Company has failed to provide such notification, Advertiser or Agency may cancel the remainder of the affected placement within thirty (30) days of such modification and, in such case, will not be charged for any affected Ads delivered after such modification.
- Technical Specifications. Media Company will notify within five (5) business days Advertiser or Agency if submitted Advertising Materials do not meet HVAC Insider Online advertising technical specifications.
III. PAYMENT AND PAYMENT LIABILITY
- Invoices. The initial invoice will be sent by Media Company within two (2) business days of confirmation to Advertiser or Agency, either electronically or in writing, stating that the components of the IO have begun delivery and monthly thereafter, unless other arrangements are made. Invoices will be sent to billing address as set forth on the IO and will include information reasonably specified by Advertiser or Agency, such as the IO number, Advertiser name, brand name or campaign name, and/or purchase order. Invoices are payable within 30 days of the invoice date. All advertising originating outside the USA must be prepaid. USA funds only.
- Upon request from the Advertiser or Agency, Media Company should provide proof of performance for the invoiced period, which may include access to online or electronic reporting, as addressed in these Terms, subject to the notice and cure provisions of Section IV. Media Company will invoice Advertiser or Agency for the services provided on a calendar-month basis with the net cost based on flat-fee as specified on the applicable IO.
- Payment Date. Invoices are payable within 30 days of invoice date. Late payments are subject to a 1 1/2% service charge per month. Media Company may notify Agency that it has not received payment in such 30-day period and whether it intends to seek payment directly from Advertiser pursuant to Section III(c), below, and Media Company may do so five (5) business days after providing such notice. Media Company reserves the right to withhold placement of ads, remove existing ads from Site and/or cancel any contracts that are over 30 days past due. If past due invoices are not remedied by the 45th day any future ads will be placed in a Cash On Delivery (COD) status.
- Payment Liability. Unless otherwise set forth by Agency on the IO, Media Company agrees to hold Agency liable for payments solely to the extent proceeds have cleared from Advertiser to Agency for Ads placed in accordance with the IO. For sums not cleared to Agency, Media Company agrees to hold Advertiser solely liable except as specifically set forth in Section VIII(c).
- Upon request, Agency will make available to Media Company written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO.
- If Advertiser’s or Agency’s credit is or becomes impaired, Media Company may require payment in advance.
- Confirmation of Campaign Initiation. Media Company will, within two (2) business days of the start date on the IO, provide confirmation to Agency, in writing, stating whether the components of the IO have begun delivery.
- Media Company Reporting. Reporting will be made available as mutually agreed to by Advertiser or Agency and Media Company.
V. CANCELLATION AND TERMINATION
- Without Cause. Unless designated on the IO as non-cancellable, Advertiser may cancel the entire IO or any portion thereof by submitting cancellation order in writing at least ten (10) business days prior to the start of ad campaign. Any written cancellations received after 10 business days prior to the start of ad campaign will be subject to a cancellation fee of 50% of the first month’s rate.
- For Cause. Either Media Company, Advertiser or Agency may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches.
VI. FORCE MAJEURE
- Generally. Excluding payment obligations, neither Advertiser or Agency nor Media Company will be liable for delay or default in the performance of its respective obligations under these Terms if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure event”). If Media Company suffers such a delay or default, Media Company will make reasonable efforts within ten (10) business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or make good is reasonably acceptable to Advertiser or Agency, Media Company will allow Advertiser or Agency a pro rata reduction in the space, time, and/or program charges hereunder in the amount of money assigned to the space, time, and/or program charges at time of purchase. In addition, Advertiser or Agency will have the benefit of the same discounts that would have been earned had there been no default or delay.
- Related to Payment. If Advertiser or Agency’s ability to transfer funds to third parties has been materially negatively impacted by a Force Majeure event beyond the Agency’s reasonable control, then Agency will make every reasonable effort to make payments on a timely basis to Media Company. Any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.
- Cancellation. If a Force Majeure event has continued for ten (10) business days, Media Company, Advertiser or Agency has the right to cancel the remainder of the IO without penalty.
VII. AD MATERIALS
- Submission. Advertiser or Agency will submit Advertising Materials no later than seven (7) business days prior to the IO start date. Media Company will not be responsible for delays in the start of the campaign due to incompatibility or problems with ad materials submitted later than seven (7) business days prior to the IO start date.
- Late Creative. If Advertising Materials are not received by the IO start date, Media Company will begin to charge the Advertiser or Agency on the IO start date on a pro rata basis based on the full IO for each full day the Advertising Materials are not received. If Advertising Materials are late based on the Policies, Media Company is not required to guarantee full delivery of the IO. Media Company and Advertiser or Agency will negotiate a resolution if Media Company has received all required Advertising Materials in accordance with Section VII (a) but fails to commence a campaign on the IO start date.
- Damaged Creative. If Advertising Materials provided by Advertiser or Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Advertiser or Agency within three (3) business days of its receipt of such Advertising Materials.
- No Modification. Media Company will not edit or modify the submitted Ads in any way, including, but not limited to, resizing the Ad, without Advertiser’s or Agency’s approval. Media Company will use all Ads in strict compliance with these Terms and any written instructions provided on the IO.
- Trademark Usage. Media Company, on the one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos, or Ads in any public announcement (including, but not limited to, in any press release) regarding the existence or content of these Terms or an IO without the other’s prior written approval.
- By Media Company. Media Company will defend, indemnify, and hold harmless Agency, Advertiser, and each of its Affiliates and Representatives from damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) resulting from any claim, judgment, or proceeding (collectively, “Claims”) brought bya Third Party and resulting from (i) Media Company’s alleged breach of Section X or of Media Company’s representations and warranties in Section XI (a), (ii) Media Company’s display or delivery of any Ad in breach of Section II(a) or Section VII(e), or (iii) Advertising Materials provided by Media Company for an Ad (and not by
- Agency, Advertiser, and/or each of its Affiliates and/or Representatives) (“Media Company Advertising Materials”) that: (A) violate any applicable law, regulation, judicial or administrative action, or the right of a Third Party; or (B) are defamatory or obscene. Notwithstanding the foregoing, Media Company will not be liable for any Losses resulting from Claims to the extent that such Claims result from Media Company’s customization of Ads or Advertising Materials based upon detailed specifications, materials, or information provided by the Advertiser, Agency, and/or each of its Affiliates and/or Representatives.
- By Advertiser. Advertiser will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from any Claims brought by a Third Party resulting from Advertiser’s violation of Policies and/or the content or subject matter of any Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms or an IO.
- By Agency. Agency represents and warrants that it has the authority as Advertiser’s agent to bind Advertiser to these Terms and each IO, and that all of Agency’s actions related to these Terms and each IO will be within the scope of such agency. Agency will defend, indemnify, and hold harmless Media Company and each of its Affiliates and Representatives from Losses resulting from (i) Agency’s alleged breach of the foregoing sentence, or (ii) Claims brought by a Third Party alleging that Agency has breached its express, Agency-specific obligations under Section X.
- Procedure. The indemnified party(s) will promptly notify the indemnifying party of all Claims of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent such party is prejudiced by such failure or delay), and will: (i) provide reasonable cooperation to the indemnifying party at the indemnifying party’s expense in connection with the defense or settlement of all Claims; and (ii) be entitled to participate at its own expense in the defense of all Claims. The indemnified party(s) agrees that the indemnifying party will have sole and exclusive control over the defense and settlement of all Claims; provided, however, the indemnifying party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on an indemnified party(s) without its prior written consent.
IX. LIMITATION OF LIABILITY
Excluding Agency’s, Advertiser’s, and Media Company’s respective obligations under Section VIII, damages that result from a breach of Section X, or intentional misconduct by Agency, Advertiser, or Media Company, in no event will any party be liable for any damages whatsoever, incurred by another party arising out of an IO, even if such party has been advised of the possibility of such damages.
X. NON-DISCLOSURE, DATA USAGE AND OWNERSHIP, PRIVACY AND LAWS
- Definitions and Obligations. “Confidential Information” will include (i) all information marked as“Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except an employee, agent, Affiliate, or third party who has a need to know same, and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than as provided for on the IO.
- Exceptions. Notwithstanding anything contained herein to the contrary, the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.
- Additional Definitions. As used herein the following terms shall have the following definitions:
- “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.
- “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.
- “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.
- “Site Data” is any data that is (A) preexisting Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.
- “Collected Data” consists of IO Details, Performance Data, and Site Data.
- “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.
- “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.
XI. USE OF COLLECTED DATA
- Unless otherwise authorized by Media Company, Advertiser will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party except as set forth in Section X(d)(iii).
- Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO.
- Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.
- Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, state and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO.
- Agency Use of Data. Agency will not: use Collected Data unless Advertiser is permitted to use such Collected Data. Notwithstanding the foregoing or anything to the contrary herein, the restrictions on Advertiser in Section X(d)(i) shall not prohibit Agency from (A) using Collected Data on an Aggregated basis for internal media planning purposes only (but not for Repurposing), or (B) disclosing qualitative evaluations of Aggregated Collected Data to its clients and potential clients, and Media Companies on behalf of such clients or potential clients, for the purpose of media planning.
- Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the Deliverables specified on the IO subject to these Terms. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in the Ads and Advertising Materials as specified on the IO and subject to these Terms, including any applicable Policies.
- Assignment. Neither Agency nor Advertiser may resell, assign, or transfer any of its rights or obligations hereunder, and any attempt to resell, assign, or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and conditions in these Terms and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors, and assigns.
- Entire Agreement. Each IO (including the Terms) will constitute the entire agreement of the parties with respect to the subject matter thereof and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which will be an original, and all of which together will constitute one and the same document.
- Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO will prevail. All IOs will be governed by the laws of the State of Georgia. Media Company and Agency (on behalf of itself and Advertiser) agree that any claims, legal proceedings, or litigation arising in connection with the IO (including these Terms) will be brought solely in the State of Georgia, and the parties consent to the jurisdiction of such courts. No modification of these Terms will be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions will remain in full force and effect. All rights and remedies hereunder are cumulative.
- Notice. Any notice required to be delivered hereunder will be deemed delivered three (3) days after deposit, postage paid, in U.S. mail, return receipt requested, one (1) business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Advertiser or Agency will be sent to the contact as noted on the IO with a copy to the Legal Department. All notices to Advertiser will be sent to the address specified on the IO.
- Survival. Sections III, VI, VIII, IX, X and XI will survive termination or expiration of these Terms, and Section IV will survive for 30 days after the termination or expiration of these Terms. In addition, each party will promptly return or destroy the other party’s Confidential Information upon written request and remove Advertising Materials and Ad tags upon termination of these Terms.
- Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.
Last updated August 25, 2017