Advertising Terms and Conditions
AVAIRY Advertising Rate Card
Contract Terms and Conditions
Last Updated: August 29, 2022
The following terms and conditions (these “Terms and Conditions”) govern and are hereby incorporated into, and made a part of, any and all insertion orders, client approval request forms and/or order forms (“Insertion Orders” or “IO’s”) between any entity that places advertising or secures other marketing services, including without limitation Custom Programs (as defined below) (“Advertiser”), whether directly or through an agent (“Agency”), in the print magazines (“Magazines”), websites and mobile sites (“Websites”), email campaigns (“Emails”), newsletters (“Newsletters”), digital magazine publications (“Digital Editions”), any other applications (“Apps”) and any other services in any and all media whether now known or hereafter developed (collectively, with all of the foregoing, the “Services”) published, owned or operated by AVAIRY Forensic Solutions LLC or its subsidiaries and/or affiliates (collectively, the “Publisher”). For the avoidance of doubt, each Agency represents and warrants that it has the right, power and authority to enter into, and is entering into, the applicable IO(s) as the authorized agent of the Advertiser placing advertising or otherwise receiving the benefit of such IO(s), and to bind the Advertiser to these Terms and Conditions.
The placement of advertising or use of marketing services on or via the Services constitutes Advertiser’s and Agency’s, if applicable, agreement to these Terms and Conditions. These Terms and Conditions may be modified from time to time by the Publisher; additional placement of advertising or use of marketing services following such modifications will constitute Advertiser’s and Agency’s agreement to such modifications.
Ad License/Multiple formats
Advertiser grants to Publisher a non-exclusive right and license to display, perform, publish, modify and transmit all copy, artwork, photography, video, URLs and other advertising materials (“Advertising Materials”) furnished by Advertiser, Agency or any of its other representatives for the purposes contemplated hereby. If the Services in which any Advertising Materials submitted under an Insertion Order are published are converted into and distributed in any other formats or media, Advertiser hereby grants to Publisher all rights necessary to convert, publish and distribute such Advertising Materials in such other formats and media.
AVAIRY’s Right to Reject, Cancel or Terminate Orders. Publisher may, in its sole discretion, refuse to publish any Advertising Materials submitted to it or defer publication of any advertisement at any time. Unless otherwise specified on the applicable Insertion Order to which these Terms and Conditions apply, an Advertiser’s media spend is for a certain number of impressions or issues of a publication, not for a fixed period of time. Inventory for display of Advertising Materials by Publisher is based on availability at time of impression delivery or publication, as applicable. Impression delivery for all online campaigns will be measured by Publisher’s designated ad-serving system. With respect to non-print (or non-print portions of) campaigns, if Publisher determines that the number of impressions likely to be delivered by the end of the campaign is less than 90% of the amount specified in the applicable IO, Publisher will use good faith efforts to notify Advertiser prior to the end date of such campaign.
Custom Programs. Notwithstanding anything herein to the contrary, at Publisher’s request, all custom programs (i.e. influencer campaigns, custom content/branded content in all media, custom webinars, events, sponsorships, production services or otherwise) (“Custom Programs”) to be produced by Publisher in connection with or as set forth in an IO shall, at Publisher’s request, be subject to the negotiation of a separate custom content agreement on terms to be mutually agreed by the parties, including without limitation timelines, deliverables, respective responsibilities and applicable legal terms. In the absence of such separate custom content agreement, or to the extent that these Terms and Conditions are incorporated therein, these Terms and Conditions shall apply to all Custom Programs. Unless otherwise agreed in writing by the parties, Custom Programs are for use solely on Publisher’s properties and may not be repurposed or republished by Advertiser without Publisher’s prior written consent.
Payment Terms. Pre-payment may be required in Publisher’s sole discretion. Except as otherwise agreed in writing by Publisher, all Custom Programs are billed in full upon IO execution with payment due thirty (30) days thereafter. All other invoices are due net thirty (30) days after invoicing. Should any invoice become past due, Advertiser agrees to pay the costs of collection, including attorneys’ fees if incurred, together with interest at a monthly rate of the lesser of 1.5% or the greatest amount permitted by applicable law. Should any portion of an invoice be disputed, Advertiser agrees to pay the undisputed portion according to its terms pending resolution of the dispute. In addition to all other remedies, Publisher may suspend its performance if any payment is past due. Suspension will not relieve the 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, ad campaigns are billed upon publication of the Advertising Materials 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.
Custom Programs and Event Sponsorships, including without limitation all media spends associated therewith, are non-cancelable, non-refundable, and exempt from viewability and frequency caps except as otherwise expressly agreed in writing. For all other media buys, unless otherwise set forth in the IO, Advertiser may not cancel any print advertising purchased pursuant to such IO after the advertising close date (the “Ad Close Date”) unless expressly permitted in writing by Publisher. No changes to the IO shall be effective unless in writing and signed by both parties. Advertiser is responsible for delivering Advertising Materials on time as provided in the IO or otherwise specified by Publisher. Advertising Materials will not be deemed delivered unless in a format specified or otherwise approved by Publisher. In the event Advertising Materials are delivered after the Ad Close Date 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 Advertising Materials 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 canceling an order past the Ad Close Date, but before the date the Advertising Materials are due (the “Advertising Materials Due Date”). In the event that Advertiser cancels an order after the Ad Close Date and the Advertising Materials Due Date, Advertiser will be responsible for a fee in the amount of 100% of the applicable advertising fee provided for in the IO. As noted above, and for the avoidance of doubt, Custom Programs may not be canceled at any time. In addition and without limitation, tickets purchased for any event are non-refundable.
Lead Generation Products (if applicable)
If Advertiser has the right to receive data from Publisher regarding potential customers for lead generation purposes (“Potential Customer Data”), (which does not include behavioral, ad traffic, engagement or other data collected from advertising placed by Advertiser on any Publisher properties), Publisher grants Advertiser a nontransferable, nonassignable limited right and license to use the Potential Customer Data subject to Advertiser’s agreement with all of the following: (i) Publisher shall have no obligation to share Potential Customer Data with respect to anyone who has communicated a desire (by “opting out” or otherwise) not to permit such use or disclosure; (ii) Advertiser shall not disclose or transfer any Potential Customer Data to any third party; (iii)
Advertiser may use the Potential Customer Data solely to promote its own products and services and for no other purpose, and in all cases shall comply with opt-out/unsubscribe/do not send and other similar requests it receives; (iv) and
Compliance with Law. Publisher and Advertiser shall comply, and Advertiser shall ensure that its agents and affiliates shall comply, with Applicable Data Protection Law. “Applicable Data Protection Law” or “Law” means the EU General Data Protection Regulation 2016/679 (“GDPR”), the California Consumer Privacy Act, the Nevada Senate Bill 220 and any other data protection law applicable to any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer, device, or household, including without limitation online identifiers, internet protocol addresses, email addresses, browsing history and search history (“Personal Information”), and any laws or regulations implementing or interpreting these data protection laws. Publisher and Advertiser agree that they do not jointly determine the purposes and means of processing the Personal Information under these Terms and Conditions. For clarity, each of Publisher and Advertiser independently controls the purposes and means of processing of the Personal Information under these Terms and Conditions. Publisher shall communicate to Advertiser any rectification or erasure of Personal Information if required to do so by Applicable Data Protection Law. If an authorized regulatory body notifies either party that the party’s processing of Personal Information is in violation of any Applicable Data Protection Law, such party shall cease and desist from or change its processing of the Personal Information if such process breaches the provisions of the Applicable Data Protection Law or exposes or potentially exposes the other party to any claim, action or complaint by a third party.
Announcement of any changes in the applicable Magazine or Digital Edition rate will be made thirty (30) days in advance of the closing date for the first issue affected by any new rates, and thirty (30) days in advance of the first advertisements affected by such new rates for all other Services. Advertising published thereafter will be at the rates then prevailing. All pricing information shall be the confidential information of Publisher and neither Advertiser nor Agency may disclose such information without the Publisher’s prior written consent.
Publisher is not responsible for errors or omissions in any Advertising Materials provided by the Advertiser or its Agency or any third party on behalf of Advertiser (including errors in key numbers) or for changes made after closing dates.
Positioning at Publisher’s Discretion
Publisher has the right to insert advertising within the Magazines and Digital Editions at its discretion. Any condition or restriction included in contracts, orders or copy instructions involving the placement of advertising within the Magazines 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.
The titles and logos of the Services are registered and unregistered trademarks of Publisher. Neither the titles nor the logos may be used without the express written consent of Publisher.
Additional Terms Applicable to Services Other than Magazines.
(b) All impressions are estimates and not guaranteed. All impressions and/or other measurements of advertisements for the Digital Outlets 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 Websites based on such Website’s own ad delivery number and, if applicable, Publisher has the right to bill for advertising in the other Digital Outlets based on its own ad delivery numbers.
(c) Unless expressly agreed by Publisher in writing, impressions sold are worldwide only.
(d) For the avoidance of doubt, Newsletters and Emails are sold by number of “sends” to opt-in subscribers and not on the basis of impressions.
(e) In addition to the disclaimers set forth in Section 15, Publisher disclaims all warranties and guarantees with respect to its Digital Outlets, 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.
(f) To the extent Advertiser and/or Agency collects or obtains any data from their use of any Services, regardless of method or device and including without limitation data that relates to usage of the Services, user behavior, and/or analytics, (i) Advertiser and Agency agree to comply with the then-current version of the AVAIRY Data Policy (the “AVAIRY Data Policy”); (ii) Advertiser represents that it participates and, during the term of the IO, shall continue to participate in the Digital Advertising Alliance (DAA) Ad Choices program and that it honors consumers’ choices exercised through that program; and (iii) to the extent that either Advertiser or Agency process Personal Information, each agree that Publisher may transmit a signal (“Limited Processing Flag”) restricting the use of Personal Information. Advertiser and Agency agree to implement technology to receive such Limited Processing Flag, which may be enabled through the U.S. Privacy String Standard Established by the IAB Tech Lab through its November 18, 2019 specification entitled “U.S. Privacy String CCPA Opt-Out Storage Format,” When Publisher transmits the Limited Processing Flag, Advertiser and Agency shall, with respect to the Advertising Materials:
act as a service provider (and therefore fulfill the obligations required of a service provider under the CCPA or applicable law);
not retain, use or disclose any Personal Information that is received from Publisher or its properties other than to deliver the particular advertisement or as may otherwise be permitted for service providers or under a comparable exemption from “sale” under the CCPA or applicable law; and
take necessary steps (including contractual restrictions) to require any entity that is part of fulfilling the advertising transaction (“Ad Serving Entity”) or that otherwise receives personal information made available by Publisher in connection with Advertising Materials on behalf of Advertiser or Agency or another Ad Serving Entity applies the data processing restrictions set forth in (1) through (3) ((1) through (3) collectively are the “Data Processing Restrictions”).
Advertiser and Agency may fulfill the Data Processing Restrictions by treating the delivery of Ads under the IO in accordance with Section VI of the IAB CCPA Compliance Framework for Publishers & Technology Companies Version 1.0 (the “Framework”) and taking necessary steps with respect Ad Serving Entities to ensure such Ad Serving Entities are signatories to the Limited Service Provider Agreement of the Framework and, with respect to any Advertising Materials served to residents of the European Union (as defined in the General Data Protection Regulations (EU) 2016/679 (“GDPR”), such Ad Serving Entities are listed on the IAB Europe GDPR Transparency and Consent Framework Global Vendor List. The foregoing is without exclusion of any restrictions on the use of Personal Information (including information derived from bid requests) stated in any agreement between the parties. The foregoing does not apply to information collected by Agency or Advertiser through a direct interaction with content or websites owned by Advertiser and used solely for the benefit of Advertiser.
Terms relating to Event Sponsorships. To the extent that any Insertion Order includes the sponsorship of any live, pre-recorded or virtual event, podcast or other activity operated by Publisher (“Events”), Publisher reserves the right to cancel any Event(s) in its sole discretion. If Publisher cancels an Event prior to the Event commencement (except if cancelled due to a Force Majeure Event (as defined below)): (i) the parties will mutually agree on a make good for Advertiser to sponsor another Event offered by Publisher in substitution to be held within one (1) year from such cancellation, provided that the substituted sponsorship shall have a value equal to, but no greater than the original sponsorship and (ii) if Advertiser does not select an available substitute, Publisher will repay any Event sponsorship fee previously paid with respect to such cancelled Event, pro rated for any portion of the benefits that have been previously provided by Publisher. Notwithstanding anything herein to the contrary, if Publisher cancels any Event(s) prior to the Event commencement due to a Force Majeure Event (as defined below), all Event sponsorship fees and related media spend commitments shall remain due and payable and Publisher’s sole responsibility shall be to provide a make good in the form of advertising credits in Publisher publications in lieu of the sponsorship benefits previously agreed (value to be applied against the then-applicable rate card for Advertiser and pro rated for any sponsorship benefits previously provided; advertising credit must be used within 12 months of the cancelled Event). Except as expressly set forth in this paragraph, Publisher shall have no liability or obligation to Advertiser arising from the cancellation of any Event(s).
Representations, Warranties and Indemnity
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 Advertising Materials submitted by or on behalf of Advertiser (including without limitation those Advertising Materials (a) supplied for publication or distribution in any of the Services; and (b) supplied with the intention that they be included in Media Company Advertising Materials (as defined in the IAB 3.0 Terms) for publication or distribution in any of the Services) 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 or any applicable laws, rules, regulations and governmental or administrative orders (including, without limitation, OBA self-regulatory principles 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: (a) all Advertising Materials submitted for publication or distribution in any of the Services, as well as Media Company Advertising Materials prepared for Advertiser or Agency, are accurate and that all claims contained therein have been adequately 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; (b) the inclusion in Media Company Advertising Materials (as published in any of the Services) of the name, voice, likeness, signature, performance, persona or other personal attributes of any individuals or third party trademarks secured by Advertiser, or Agency on behalf of Advertiser, shall not constitute a misappropriation or violate any right of publicity or privacy, trademark or the Lanham Act or similar rights of such individuals or third party trademark owners; (c) any Personal Information that Advertiser, or Agency 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 used or disclosed except as permitted herein; (iv) Advertiser and Agency shall comply with all applicable notification laws and requirements in the event Personal Information in its possession or in the possession of its service providers is subject to unauthorized access or disclosure, or is otherwise affected by a security failure; (v) Advertiser and Agency will comply with all data protection and privacy laws, rules and regulations applicable to it, including but not limited to the Applicable Data Protection Law and (iv) all email communications Advertiser or Agency 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 and Agency 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:(w) a breach or allegation which if true would constitute a breach of any of the representations, warranties or covenants of Advertiser or Agency 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 by Advertiser or Agency or any third party operating on their behalf; 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 Event sponsorship opportunities, Custom Programs, or other content design, sweepstakes management, email design or distribution, or other promotional services in connection with an advertising commitment by Advertiser or Agency (collectively, the “Additional Services”), all such Additional 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 Additional 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 Advertising Materials, including without limitation any Media Company Advertising Materials, Publisher will indemnify 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 any Advertising Materials by Publisher shall not modify the foregoing or alter Advertiser’s indemnification obligations herein.
Limitations on Liability
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 LIMITING THE FOREGOING, PUBLISHER SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM DISPLAYING THE ADVERTISING MATERIALS OR THAT THE ADVERTISING WILL BE ERROR-FREE. Without limiting the generality of the foregoing, Publisher further disclaims all warranties and guarantees with respect to the Services, including without limitation, warranties and/or guarantees relating to (a) the positioning or placement of advertisements on the Services; (b) advertising results on the Services; and (c) the accuracy of audience data, including, but not limited to, audience demographic data, audience size/reach data, and otherwise with respect to the Services. In no event shall Publisher have any liability for any advertising, creative, printing or administrative costs.
Publisher shall not be liable for any default or delay in performance or underperformance of any of its obligations hereunder if such default or delay is caused directly or indirectly by wars, rebellions, terrorist acts or threats of terrorism, civil disorder, labor strikes or disruptions, fire, disease, medical epidemics or outbreaks, sabotage, accidents, public health emergencies, curtailment of transportation facilities preventing or delaying attendance by at least twenty-five percent of any Event participants, natural disasters or other Acts of God or causes beyond such party’s reasonable control, including emergencies and non-emergencies, that make it inadvisable, commercially impracticable, illegal, or impossible to perform or fully perform its obligations hereunder, in Publisher’s reasonable discretion (a “Force Majeure Event”).
Choice of Law, Jurisdiction and Venue
The IOs and these Terms and Conditions, shall be construed in accordance with and governed by the laws of the State of Ohio, without giving effect to principles of conflict of laws principals thereof. Any dispute, proceeding or other legal action brought by Advertiser or Agency against Publisher arising from or relating to an IO and/or these Terms and Conditions (“Dispute”) must be brought exclusively in the state or federal courts located in Amherst, Ohio, and Advertiser and Agency agree that they shall bring any Dispute only in such courts. Advertiser and Agency hereby irrevocably submit to the jurisdiction of the state or federal courts located in Amherst, Ohio in connection with a Dispute or any action brought by Publisher arising from or relating to an IO and/or these Terms and Conditions, including but not limited to, actions to collect amounts due. Advertiser and Agency hereby irrevocably waive any claim that any legal proceeding brought in any such courts has been brought in an inconvenient forum or that the venue of such proceeding is improper.
Service of Process
Advertiser and Agency, on its own behalf and on behalf of Advertiser, hereby designate their offices at the addresses indicated in the applicable IO for service of process in any action or proceeding arising under the IO and/or these Terms and Conditions and waive any U.S. and international treaty provisions with respect to such service of process. Service of process upon Advertiser or Agency in any action or proceeding arising hereunder may be by registered or certified mail (return receipt requested).
A copy of any notice to Publisher regarding the breach, modification or interpretation hereof shall be delivered by overnight (Fedex, UPS) or by certified mail to: AVAIRY Forensic Solutions LLC, Attn: Kevin DeLong, 121 North Leavitt Road #116, Amherst, Ohio 44001 and a copy emailed to [email protected]