Item 1. Sponsor Advert Submissions.
1. 1 American Woman Magazine will help you create or will provide you technical creative specifications for your sponsor advertiser imagery and links.
Item 2. Ads and Deliverable Items:
2.1 Placement of Ads. Subject to the terms of this Agreement, American Woman Magazine will deliver Ads in accordance with the terms of the applicable Submission. In the event that your Submissions are not accepted by American Woman Magazine, American Woman Magazine will not be obligated to deliver any Ads (however, American Woman Magazine does have the option of proposing alternative ad or location). In each Sponsor Package Submission, you will specify the amount and type of sponsorship advertising that you are purchasing according to your selected Platinum, Gold, Silver, Bronze, or Business Directory Listing Package (the “Deliverables”). American Woman Magazine, in its sole discretion, may determine the positioning and any other aspects of the presentation of any Ads. Scheduling of delivery of any Ads is subject to availability and may not be continuous.
2.3 Ad Delivery. American Woman Magazine will determine all measurements relating to Deliverables in accordance with its standard tracking methodologies. All payments due hereunder will be based solely on such measurements and no third party measurement tools are valid for this agreement.
2.4 Failure to Deliver and Makegoods/Remedies. If American Woman Magazine fails to deliver any Deliverables in accordance with the terms of a Submission, you will not be responsible for payment for the days in which you Ads did not run. This shall be your sole and exclusive remedy. American Woman Magazine will have no obligation to continue to deliver any such Ads after the term of the Submission if the Submission has been terminated by reason of your breach pursuant to Item 4.
Item 3. Payments and Reporting.
3.1 Payments. You will pay all amounts specified in an accepted Submission, along with any applicable taxes, in advance, by paying via check to your American Woman Magazine account manager, or iva US Postal mail to: American Woman Magazine, ℅ American Woman Magazine.net, LLC, 14999 White Rd, Suite 1, Middlefield, OH, 44062. You are responsible for all charges related to the transaction. If your payment method fails or your account is past due, American Woman Magazine may collect past due amounts using other collection mechanisms, and you agree to pay all expenses associated with such collection, including reasonable attorneys’ fees. To the fullest extent permitted by law, you waive all claims against American Woman Magazine related to charges unless claimed within 60 days after the charge.
3.2 Cancellation. If you cancel any portion of a Submission pursuant to Item 4, you understand that the Ads will be removed immediately. You will only be responsible for a fee for the actual days the Ads ran.
Either party may terminate this Agreement at any time upon written notice to the other party if the other party materially breaches this Agreement and such breaching party does not cure the same within fifteen (15) days after written notice thereof from the non-breaching party. In addition, you may cancel a Submission at any time through the online, self-service interface. Items 2.2 (Ad Content), 2.3 (Promotions), 2.6 (Failure to Deliver and Makegoods), 3 (Payments and Reporting), 4 (Termination), 6.4 (Persistence), 7 (Confidentiality), 8.4 (Additional Liability), 9 (Representations and Indemnification), 10 (Limitation of Liability), 12 (Disputes) and 13 (General) of these Terms and Conditions, together with any accrued but unpaid payment obligations of either party, will survive any expiration or termination of this Agreement.
5. American Woman Magazine Control of American Woman Magazine Inventory.
5.1 American Woman Magazine Inventory Design. You acknowledge and agree that American Woman Magazine is, and will at all times be responsible for the design, layout, look-and-feel, and maintenance of any and all aspects of the American Woman Magazine Sponsorship Advertising Inventory. American Woman Magazine may, in its sole discretion, redesign, delete or replace any pages, groups or other areas on which Ads will be displayed.
5.2 Rejection/Removal of Ads. American Woman Magazine may, in its sole discretion, reject or remove any Ad at any time, with or without notice, which (a) violates this Agreement, the content restrictions or any other provision of the American Woman Magazine Guidelines or (b) which American Woman Magazine otherwise determines to be inappropriate for any reason in its sole discretion, whether or not such Ad was previously accepted.
5.3. Increase in quantity and price of Inventory. American Woman Magazine may, in its sole discretion, increase or decrease the fees it charges for its Inventory and may, in its sole discretion, add additional Inventory at any time.
Item 6. Licenses.
6.1 License to Client Materials. You hereby grant to American Woman Magazine (and its affiliates) a worldwide, non-exclusive, royalty-free, fully-paid license to (a) use, reproduce, perform, display, and distribute Ads and any related information provided by you in connection with, on and through the American Woman Magazine Inventory (“Client Materials”) and (b) alter, modify, repurpose or create derivative works of Client Materials as necessary or desirable in order to serve advertising units and newsfeed content or other content on the American Woman Magazine Inventory. Client Materials include any copyrighted materials, and any trademarks, service marks, logos or other source or business identifiers included therein (“Trademarks”). Except as otherwise expressly set forth in this Agreement, the licenses granted under this Item 6.1 will be for the period of the applicable Submission.
6.2 Publicity. During and after the term of this Agreement, American Woman Magazine may use Ads, your name and your logo, and may reference the type of advertising and any measurements relating to Deliverables for the advertising campaign delivered on your behalf, in a factual and non-disparaging manner, for promotional or marketing purposes. American Woman Magazine may also reference any information publicly available about you on or off the American Woman Magazine Inventory.
6.3 Reservation of Rights. As between American Woman Magazine and you, you retain all rights in and to your Ads (including all of your Trademarks and all other related intellectual property rights embodied therein), and, upon the termination of this Agreement, all rights granted to American Woman Magazine hereunder with respect to such Ads will cease, except as otherwise provided herein. You will not use, reproduce or display any Trademarks of American Woman Magazine in any manner without American Woman Magazine’s prior written consent.
6.4 Persistence. Notwithstanding anything to the contrary in this Agreement, You acknowledge and agree that Ads and other Trademarks that are used or displayed on the American Woman Magazine Inventory may continue to be used and displayed on the American Woman Magazine Inventory, even after you have completed the ad campaign or terminated this Agreement or the applicable Submission, as such Ads or Trademarks may have been incorporated into user profiles, news feeds or other features, and that such usage and display may continue indefinitely.
Item 7. Confidentiality.
7.1 Confidential Information. No information disclosed by you pursuant this Agreement or in any Submission shall be deemed confidential.
7.2 Feedback. You may from time to time provide ideas, suggestions or other feedback regarding the American Woman Magazine Inventory (including as to improvements or modifications thereto). Both parties agree that except as otherwise agreed by American Woman Magazine in a signed writing, such ideas, suggestions and other feedback is not confidential or proprietary, and that American Woman Magazine will be entitled to use, implement disclose and otherwise exploit such feedback in any manner, without restriction or duty to compensate you or account.
7.3 Public Disclosures. Except as permitted by Item 6.2, neither party will issue any press releases, or otherwise make any public statements or communications regarding this Agreement or the relationship of the parties without the other party’s prior written consent.
Item 8. Applicable to Advertising Agencies.
In the event that you are an advertising agency or other entity representing an Advertiser (as defined in Item 8.2) or placing Ads on someone else’s behalf, you agree that this Item 8, along with all other terms in this Agreement, directly apply to and bind you.
8.1 Advertiser Definition. As used herein, “Advertiser” means the individual or entity on whose behalf you are placing Ads on the American Woman Magazine Inventory.
8.2 Additional Representations and Warranties. You represent, warrant and covenant that: (a) you are the authorized agent of Advertiser and have the legal authority to enter into this Agreement and any Submission on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts (these rights “Agency Rights”); (b) you have or will enter into a written agreement with Advertiser (i) that obtains Agency Rights; (ii) that binds the Advertiser to terms as protective of American Woman Magazine as this Agreement and (iii) to which American Woman Magazine is an intended third party beneficiary with respect to Ads delivered on the American Woman Magazine Inventory (the written agreement between Advertiser and Client containing the requirements in this Item 8.2(b), the “Advertiser Agreement”); and (c) you will not, without American Woman Magazine’s prior written consent: (i) make any representation, guarantee, condition, or warranty concerning the American Woman Magazine Inventory, or that you are an affiliate or partner of American Woman Magazine, (ii) make any commitments (for example, guarantees as to placement of ads) to an Advertiser or potential Advertiser beyond American Woman Magazine’s obligations under this Agreement, (iii) negotiate any terms or conditions related to the American Woman Magazine Inventory which are inconsistent with this Agreement, or (iv) engage in any telesales or telemarketing in connection with the American Woman Magazine Inventory.
8.3 Agency Agreement and Relationship Termination. Upon American Woman Magazine’s request, you will immediately deliver to American Woman Magazine each applicable Advertiser Agreement. If your relationship with an Advertiser terminates, you agree that American Woman Magazine may contract directly with such Advertiser to allow such Advertiser to continue to place Ads on the American Woman Magazine Inventory and obtain information related to Ads run on its behalf, including account and performance history, and that you will no longer have access to such Advertiser’s account.
8.4 Additional Liability. Without limiting any other provision of this Agreement, any acts or omissions by any Advertiser in violation of this Agreement will be deemed a breach of this Agreement by you, and both you and Advertiser will indemnify, defend, and hold American Woman Magazine harmless from and against all damages, liabilities, costs, and expenses that American Woman Magazine may incur as the result of such violation. In addition, you acknowledge that American Woman Magazine may but will in no event be obligated to directly contact any Advertiser and directly enforce the terms of any applicable Advertiser Agreement, including if American Woman Magazine has not received payment for such Advertiser’s account within 30 days from the date of the applicable payment due date.
Item 9. Representations and Indemnification.
9.1 Representations and Warranties. You represent and warrant that: (a) you have authority to enter into this Agreement on behalf of the entity for which the Ad is being placed; (b) you are duly organized, validly existing, and in good standing under the laws of the jurisdiction in which you were organized; (c) the execution and delivery of this Agreement, and the performance of the transactions contemplated hereby, are within your corporate powers, and have been duly authorized by all necessary corporate action; (d) your performance of this Agreement, and American Woman Magazine’s exercise of its rights under this Agreement, will not result in a violation of any agreement or other obligation by which you are bound; (e) the Ads will not contain any material which violates the American Woman Magazine Guidelines or which is otherwise unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any intellectual property rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability; and (f) you will comply with all applicable laws and regulations in your performance of this Agreement (including all applicable (i) privacy and data protection laws and (ii) regulations and laws and regulations related to Promotions).
9.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. American Woman Magazine DOES NOT WARRANT THAT THE American Woman Magazine INVENTORY OR ITS DELIVERY OF ADVERTISEMENTS HEREUNDER WILL BE ERROR-FREE, UNINTERRUPTED OR CONTINUOUS. WITHOUT LIMITING THE FOREGOING, American Woman Magazine WILL HAVE NO LIABILITY FOR CLICK FRAUD OR OTHER IMPROPER ACTIONS OF THIRD PARTIES WHICH MAY AFFECT THE COST OF ADVERTISING. THE FOREGOING DISCLAIMER OF WARRANTY IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER, AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH DISCLAIMER.
9.3 Indemnification. You will indemnify and hold harmless American Woman Magazine and its affiliates, and each of their officers, directors, employees, and agents (collectively, the “Indemnified Parties”), from and against any and all expenses, damages and losses of any kind (including reasonable legal fees and costs) incurred by any of the Indemnified Parties arising out of or in connection with any claim by a third party (a “Third Party Claim”) arising from or related to: (a) any actual or alleged breach of your representations or warranties under Items 9.1 and 8.2 (as applicable); (b) any Promotion, including any claims for any delivery of, non-delivery of, defects in, use of or inability to use any prizes or any violation by the Promotion of any applicable law, rule or regulation; (c) any Ad or any material to which users can link, or any products or services made available to users, through the Ads. American Woman Magazine will notify you promptly of any Third Party Claim for which it seeks indemnification and will permit you to control the defense of such Third Party Claim with counsel chosen by you; provided, that you will not enter into any settlement that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of any Indemnified Party without American Woman Magazine’s prior written consent.
10. Limitation of Liability.
American Woman Magazine WILL NOT BE LIABLE FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL American Woman Magazine’S TOTAL AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU, TO American Woman Magazine DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM.
11. Force Majeure.
Excluding payment obligations, neither party will be liable for any delay or default in the performance of its obligations if such delay or default is caused by conditions beyond its reasonable control, including fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures or acts of God (collectively, “Force Majeure”). If performance is delayed by more than 30 days as a result of any Force Majeure, either party will be entitled to terminate this Agreement by written notice delivered at any time prior to the other party’s resumption of performance of this Agreement.
Item 12. Disputes.
The laws of the state of Ohio, without regard to principles of conflict of laws, will govern any dispute related to this Agreement or a Submission. You agree that, except as otherwise provided for in this Item 12, all claims and disputes that arise out of or relate in any way to this Agreement or your placement of Ads on the American Woman Magazine Inventory will be resolved by binding arbitration by a single arbitrator in Geauga County, in the State of Ohio. The arbitrator’s award will be binding and may be entered as a judgment in any court of competent jurisdiction. Claims for injunctive or other equitable relief may also be brought in a court of law. For purposes of such relief or remedy, or any other court proceeding under this Item 12, you agree to submit to the exclusive jurisdiction of the state and federal courts located in the State of Ohio.
Item 13. General.
Except as specifically provided herein, if any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect and the court will construe any invalid or unenforceable portions in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement and the rest of the Agreement will remain in full force and effect. The failure by either party to enforce any provision of this Agreement will in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of such party to enforce such provision thereafter. You may not assign or otherwise transfer (including by any reorganization, change of control, merger, acquisition or sale or transfer of all or part of its assets or business) your rights or obligations under this Agreement including any Submission without the prior written permission of American Woman Magazine, and in no event will American Woman Magazine be obligated to serve Ads for any third party. American Woman Magazine may freely assign or otherwise transfer its rights and obligations under this Agreement including any Submission, in whole or in part. Any purported assignment or other transfer in violation of this provision will be null and void. This Agreement will be binding upon, and inure to the benefit of the parties and their permitted respective successors and assigns. Each of American Woman Magazine’s affiliates are express and intended third party beneficiaries of this Agreement and may enforce any of its terms and exercise any of the rights to the same extent as American Woman Magazine. You and American Woman Magazine are independent contractors, and nothing in this Agreement is intended to or does create any type of joint venture, partnership or employer/employee relationship between You and American Woman Magazine or its affiliates. American Woman Magazine may provide effective notice to you by sending an email to the email address specified in your account, and the notice will be deemed received when sent. Any notices you send to American Woman Magazine will be sent via courier or registered mail to American Woman Magazine ℅ Little Acorn Meda, LLC, 14999 White Rd, Suite 1, Middlefield, OH 44062 Attn: Legal Department, American Woman Magazine, and will be deemed received when such notice is received by American Woman Magazine. Whenever used in this Agreement, unless otherwise specified, the terms “includes”, “including”, “e.g.,”, “for example”, “for instance” and other similar terms are deemed to include the term “without limitation” immediately thereafter. All communications and notices to be made or given pursuant to this Agreement will be in the English language. This Agreement (including any Submissions, agreements, policies and other documents incorporated by reference herein), constitutes the entire agreement between you and American Woman Magazine regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement or communication between you and American Woman Magazine, whether written or oral.