A. Family Style’s Right to Reject, Cancel or Terminate Orders
Family Style reserves the right at its absolute discretion, and at any time, to cancel any advertising order or reject any advertising copy, whether or not the same has already been acknowledged and/or previously published, displayed, performed or transmitted (collectively referred to herein as “Published” or “Publish”), including, but not limited to, for reasons relating to the content of the advertisement or any technology associated with the advertisement. In the event of such cancellation or rejection by Family Style advertising already run shall be paid for at the rate that would apply if the entire order were Published and no short rate will apply.
In addition, Family Style reserves the right to (i) remove from selected copies of its Magazines and Apps advertisements containing matter that subscribers have deemed objectionable; and (ii) implement blocking technology (including geo-blocking technology) in connection with its Websites and Apps.
Family Style, at its absolute discretion, may terminate its relationship with Advertiser and/or Agency for the breach of any of the terms hereof, including without limitation a breach based on the failure on the part of either Advertiser or Agency to pay each bill by its due date. Should Family Style terminate its relationship with Advertiser and/or Agency, a short-rate may apply and all charges incurred together with short-rate charges shall be immediately due and payable. Furthermore, in the event Advertiser or Agency breaches, Family Style may, in addition to its other remedies, (a) cancel its recognition of Agency, thereby causing Agency to lose claim to any commission for any further advertising placed with Family Style on behalf of Advertiser or any other client, and/or (b) refuse to Publish any or all of Advertiser’s advertising.
B. Advertiser’s Failure to Run Advertising/Short-Rate
All agreements for advertising frequency discounts require that the specified number of advertisements be Published within a specified period and be promptly paid for. In the event of Advertiser’s or its Agency’s cancellation of any portion of any advertising order/contract or failure to have Published and paid for the specified number of advertisements, or if at any time Family Style in its reasonable judgment determines that Advertiser is not likely to Publish and pay for the total amount of advertising specified during the term of the agreement, any rate discount will be retroactively nullified, including for previously Published advertisements, and may result in a short-rate. In such event, Advertiser and/or Agency must reimburse Family Style for the short-rate (which is the difference between the rate charged on the contracted frequency and the higher rate based on the reduced frequency of advertisements actually Published and paid for) within 30 days of invoice therefore and Advertiser will thereafter pay for advertising at the open rate or at the earned rate(s) as applicable. Any merchandising program executed by Family Style in reliance on advertising that is canceled will be paid for by Advertiser at the fair market rate for such program. Advertising credits (for any earned advertising frequency discount adjustments for advertising run in excess of specified schedule) will only be earned if all advertising is paid for by the due date. Advertising credits must be used by the Advertiser within six months after the end of the period in which they were earned. Unused advertising credits will expire six months after the end of the period in which they were earned.
C. Restrictions on Advertiser’s Ability to Cancel Advertising Orders
Orders for inside or outside cover pages are non-cancelable. Options on cover positions must be exercised at least 30 days prior to four-color closing date. If an order is not received by such date, the cover option automatically lapses. Orders for all inside advertising units are non-cancelable less than 15 days prior to closing date. Orders for furnished inserts are non-cancelable less than 15 days prior to closing date. Orders for all Family Style-produced inserts are non-cancelable. If, however, Family Style agrees to cancel an existing order, Advertiser will be responsible for the cost of any work performed or materials purchased on behalf of Advertiser, including the cost of services, paper and/or printing.
D. Advertising Positioning at Family Style’s Discretion
Orders for advertising containing restrictions or specifying positions, facings, editorial adjacencies or other requirements may be accepted and Published but such restrictions or specifications are at Family Style’s sole discretion.
E. Errors in or Omissions of Advertisements
In the event of Family Style’s errors in or omissions of any advertisement(s), Family Style’s liability shall be limited to a credit of the amount paid attributable to the space of the error (in no event shall such credit exceed the total amount paid to Family Style for the advertisement), and Family Style shall have no liability unless the error/omission is brought to the Family Style’s attention no later than 15 days after the advertisement is first Published. However, if a copy of the advertisement was provided or reviewed by Advertiser, Family Style shall have no liability. In no event will Family Style have any liability for errors or omissions caused by force majeure or errors in key numbers, nor will Family Style have any liability for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like.
F. Trademarks
The titles and logos of the Magazines, Websites and Apps Published or used by Family Style are registered and/or pending trademarks, service marks; and/or trademarks protected under common laws. Neither the titles nor the logos may be used without the express written permission of by Family Style.
G. Warranties; Indemnification
Advertiser and its Agency, if there be one, each represent and warrant that: (i) Advertiser’s websites, mobile sites, applications, and/or similar services that are associated with advertising purchased under an IO shall contain all necessary consumer disclosures required by applicable federal, state and local laws, rules and regulations, including, but not limited to, an accurate privacy policy (and Advertiser shall not violate the terms of such disclosures); and (ii) any advertising or other material (including product samples) submitted by Advertiser or Agency complies with all applicable laws and regulations and does not violate the personal or proprietary rights of, and is not harmful to, any person, corporation or other entity. (Advertiser understands that the national edition(s) of Family Style’s Magazine is distributed primarily in North America, with incidental distribution throughout the world.) As part of the consideration to induce Family Style to Publish such advertisement, Advertiser and its Agency, if there be one, each agrees jointly and severally to defend, indemnify and hold harmless Family Style, and its employees and representatives, against any and all liability, loss, damage, and expense of any nature, including attorneys’ fees (collectively, “Losses”) arising out of any actual or potential claims for libel, invasion of privacy, harm, copyright, patent, or trademark infringement, and/or any other actual or potential claims or suits that may arise out of (a) the copying, printing, publishing, displaying, performing, distributing or transmitting of such advertisement; (b) any violation of the CAN-SPAM Act or other laws relating to Advertiser’s advertisements, including, but not limited to, commercial messages e-mailed on Advertiser’s behalf by Family Style; (c) the loss, theft, use, or misuse of any credit/debit card or other payment, financial, or personal information; (d) the products and/or services promoted, sold, presented and/or contained in Advertiser’s advertisements; and/or (e) a breach or alleged breach of its covenants, warranties and obligations under these advertising rate card contract terms and conditions. If Family Style participated in the creation of an advertisement, Family Style will indemnify Advertiser in connection with potential claims only to the extent it has agreed to do so in writing.
H. Responsibility for Payment of Advertising Bills
In the event an order is placed by an Agency on behalf of Advertiser, such Agency warrants and represents that it has full right and authority to place such order on behalf of Advertiser and that all legal obligations arising out of the placement of the advertisement will be binding on both Advertiser and Agency. Advertiser and its Agency, if there be one, each agrees to be jointly and severally liable for the payment of all bills and charges incurred for each advertisement placed on Advertiser’s behalf. Advertiser authorizes Family Style, at its election, to tender any bill to Agency, and such tender shall constitute due notice to Advertiser of the bill and such manner of billing shall in no way impair or limit the joint and several liability of Advertiser and Agency. Any bill tendered by Family Style shall constitute an account stated unless written objection thereto is received by Family Style within ten (10) days from the rendering thereof. Payment by Advertiser to Agency shall not discharge Advertiser’s liability to Family Style The rights of Family Style shall in no way be affected by any dispute or claim between Advertiser and Agency. Advertiser and Agency agree to reimburse Family Style for its costs and attorneys’ fees in collecting any unpaid advertising charges. Advertiser confirms that it has appointed Agency, if one is specified, to be its authorized representative with respect to all matters relating to advertising placed on Advertiser’s behalf with the understanding that Agency may be paid a commission.
I. No Assignment of Advertising
Advertiser and its Agency may not use any advertising space either directly or indirectly for any business, organization, enterprise, product, or service other than that for which the advertising space is provided by Family Style, nor may Advertiser or Agency authorize any others to use any advertising space.
J. Republication of Advertisements
Advertiser and Agency agree that any submitted advertisements Published, may, at Family Style’s option, be republished, re-performed, retransmitted or otherwise reused by Family Style or its agents in any form in whole or in part in all media now in existence or hereafter developed, whether or not combined with material of others. The copyright in any advertisement created by Family Styleis owned by Family Style and may not be otherwise used by Advertiser or third parties without Family Style’s prior written consent.
K. Advertising Rates
Family Style’s Magazine and App rates contained in advertising orders that vary from the rates listed herein shall not be binding on Family Style and the advertisements ordered may be inserted and charged for at the actual schedule of rates herein.
L. Choice of Law and Forum
All issues relating to advertising will be governed by the laws of the State of New York applicable to contracts to be performed entirely therein. Any action brought by Advertiser against Family Style relating to advertising must be brought in the state or federal courts in New York, New York. The parties hereby consent to the exclusive jurisdiction of the state or federal courts in New York, New York in connection with actions relating to advertising, including, but not limited to, actions to collect amounts due for advertising.
M. Entire Agreement
The foregoing terms and conditions (and the Additional Terms set forth below) shall govern the relationship between Family Style and Advertiser and/or Agency. Family Style has not made any representations to Advertiser or Agency that are not contained herein. Unless expressly agreed to in writing and signed by an officer or senior executive of Family Style, no other terms or conditions in contracts, orders, copy, or otherwise will be binding on Family Style. Failure by Family Style to enforce any of these provisions shall not be considered a waiver of such provision.
N. Impression Guarantees and Calculations
Family Style makes no guarantee or representation as to the quantity and/or quality of visits, impressions, circulation, or other usage of Family Style’s Websites or Apps or of the advertisement, or as to the use of any particular tracking or information-gathering devices, unless Family Style expressly agrees otherwise in writing. In addition, all impressions and/or other measurements of advertisements for Family Style’s Websites and Apps shall be based solely on Family Style’s calculations for its Websites and Apps. Unless otherwise agreed to in writing by Family Style, Family Style will bill for the advertising on Family Style’s Websites based on such Websites’ own ad delivery numbers (“DFP numbers”); and, if applicable, Family Style has the right to bill for advertising in Family Style's Apps based on its DFP numbers. In the event Family Style and Advertiser agree in writing that certain ads will be billed based on ad delivery numbers other than the applicable Website’s (and/or Apps’) own DFP numbers (i.e., third party numbers), Family Style will bill for such ads based on such third party numbers as long as the delivery discrepancy from third party numbers and DFP numbers is less than ten percent (10%). In the event that a difference of ten percent (10%) or more arises, both Family Style and Advertiser/Agency agree to use reasonable efforts to reconcile the difference and come to a mutually agreed upon solution. If an agreement cannot be reached or if Advertiser fails to provide its third party ad delivery numbers within ten (10) business days after the end of each month of its ad campaign, Family Style reserves the right to bill Agency/Advertiser at a delivery rate of ninety percent (90%) of DFP numbers. To the extent Family Style fails to provide Advertiser with the number of impressions guaranteed (if applicable) on its Websites or Apps, Family Style will provide as a sole remedy a make-good, by extending the order beyond the contracted advertising flight period until the remainder of the guaranteed impressions are delivered. For purposes of clarification, Advertisers that request a special billing schedule or an upfront bill will not receive refunds/adjustments in the case of under-delivery of guaranteed impressions (if applicable).
O. Errors in or Omissions of Advertisements
In the event of Family Style’s errors in or omissions of any advertisement(s) on its Websites or Apps (including, but not limited to, errors or omissions involved in converting Advertiser’s ads into an App), Family Style’s sole liability shall be limited to a credit of the amount paid attributable to the space of the error (in no event shall such credit exceed the total amount paid to Family Style for the advertisement), and Family Style shall have no liability unless the error/omission is brought to the Family Style’s attention no later than 5 days after the advertisement is first Published. However, if a copy of the advertisement was provided or reviewed by Advertiser, Family Style shall have no liability. In the event of a suspension of Family Style’s Websites or Apps due to computer, software, or network malfunction, congestion, repair, strike, accidents, fire, flood or any other cause or contingencies or force majeure beyond the reasonable control of Family Style, it is agreed that such suspension shall not invalidate any advertising agreement but a) will give Family Style the option to cancel any advertising agreement, or if Family Style does not do so, b) upon resumption of Family Style’s Websites and/or Apps, the agreement shall be continued and Family Style will have no liability for any errors or omissions or any damages caused by such suspension. In no event will Family Style have any liability for errors in key numbers, nor will Family Style have any liability for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits, business interruption, loss of information and the like.
P. Restrictions on Advertiser’s Ability to Cancel Advertising Orders
Orders for all advertising units on Family Style’s Websites are non-cancellable less than five (5) days prior to the start of advertising campaign. If, however, Family Style agrees to cancel an existing order for its Websites, Advertiser will be responsible for the cost of any work performed or materials purchased on behalf of Advertiser, including the cost of services.
Q. Additional Advertiser Warranties; Indemnification
In addition to the warranties set forth in Section G above, Advertiser and its Agency, if there be one, each represent and warrant that: (i) any advertising or other material submitted by Advertiser or Agency for display on Family Style's Websites or Apps, and any material to which the advertisement or other material links or refers, complies with all applicable laws and regulations and does not violate the personal or proprietary rights of, and is not harmful to, any person, corporation or other entity. (Advertiser understands that although the intended audience of Family Style’s Websites and Apps is primarily in North America, the Websites and certain Apps may be accessible throughout the world.); (ii) none of the advertisements or other materials provided to Family Style for display on its Websites or Apps cause the download or delivery of any software application, executable code, any virus or malicious or social engineering (e.g., phishing) code or features; and (iii) it will not conduct or undertake, or authorize any third party to conduct or undertake, any unlawful or improper actions in connection with the Websites or Apps, including, but not limited to, generating automated, fraudulent or otherwise invalid clicks or impressions on Family Style’s Websites or Apps. In addition to the indemnification obligations of Advertiser/Agency set forth in Section G above, Advertiser and its Agency, if there be one, each agrees jointly and severally to defend, indemnify and hold harmless Family Style and its employees and representatives for Losses (as defined in Section G above) that may arise from or relate to: (a) the linkage of any advertisement on Family Style’s Websites or Apps to other material; or (b) a breach or alleged breach of Advertiser’s warranties set forth in this Section Q.
R. Disclaimer
Family Style disclaims all warranties and/or guarantees, express or implied, including, but not limited to, warranties for non infringement, accuracy, availability, uptime, merchantability and/or fitness for any particular purpose in connection with the display, performance and transmission of advertisements on Family Style's websites and apps. Without limiting the generality of the foregoing, Family Style disclaims all warranties and guarantees with respect to its Websites and Apps, including, without limitation, warranties and/or guarantees relating to: (a) the positioning or placement of advertisements on Family Style’s Websites or Apps, (b) the availability, uptime and delivery of any impressions or advertisements on any of Family Style’s Websites or Apps; (c) advertising results on the Websites and Apps; (d) the accuracy of audience data, including, but not limited to, audience demographic data, audience size/reach data, etc. with respect to the Websites and Apps; and (e) the quantity, quality or frequency of clicks or click-through rates of advertisements on the Websites and Apps. Advertiser acknowledges that third parties other than Family Style may generate automated, fraudulent or otherwise invalid/improper impressions, conversions, inquiries, clicks or other actions on Advertiser’s advertisements displayed on Family Style’s Websites or Apps. As between Advertiser and Family Style, Advertiser accepts the risk of any such improper actions. Advertiser’s exclusive remedy for such suspected improper actions is for Advertiser to request a refund relating to its impacted advertisements in the form of advertising credits on the applicable Website or App within thirty (30) days from the end of the calendar month in which such advertisement is initially displayed on the applicable Website or App. Any advertising credit refunds in connection with the Advertiser’s aforementioned requests are within the sole discretion of Family Style.
