A: The Davis Media Company Inc.’s Right To Reject, Cancel or Terminate Orders
The Davis Media Company Inc. and/or its’ Association Partner reserves the right at its 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. In the event of such cancellation or rejection by The Davis Media Company Inc., 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. The Davis Media Company Inc., 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 The Davis Media Company Inc. terminate its relationship with Advertiser and/or Agency, all charges incurred together with short rate charges shall be immediately due and payable.
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 The Davis Media Company Inc. 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 The Davis Media Company Inc. 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 The Davis Media Company Inc. in reliance on advertising that is cancelled will be paid for by Advertiser at the fair market rate for such program. Rebates (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. Rebates must be used by the Advertiser within six months after the end of the period in which they were earned. Unused rebates will expire six months after the end of the period in which they were earned.
C. Restrictions on Advertiser’s Cancellation of Advertising Orders
Orders for cover and tab positions including the inside front, inside back, outside back or tabbed dividers are non-cancelable. Options on cover and/or tab positions must be exercised at least 45 days prior to material/space closing date. If an order is not received by such date, the cover and/or tab option automatically lapses. Orders for all inside advertising are non-cancelable less than 15 days prior to closing date. Orders for furnished inserts are non-cancelable 15 days prior to the closing date. Orders for all The Davis Media Company Inc. produced inserts are non-cancelable without the written agreement of The Davis Media Company Inc. If, however, The Davis Media Company Inc. 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, including design, paper and/or printing.
D. Advertising Positioning at The Davis Media Company Inc.’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 The Davis Media Company Inc.’s sole discretion.
E. Labeling of Advertisements
Advertisements that simulate editorial content must be clearly identified and labeled “ADVERTISEMENT” at the top of the advertisement, and The Davis Media Company Inc. may, in its discretion, so label such copy.
An accurate facsimile of any furnished insert may be required for review prior to the printing of the insert. The Davis Media Company Inc. is not responsible for errors or omissions in, or the production quality of, furnished inserts. Advertiser and/or Agency shall be responsible for any additional charges incurred by The Davis Media Company Inc. arising out of Advertiser and/or Agency’s failure to deliver furnished inserts pursuant to The Davis Media Company Inc.’s specifications. In the event that The Davis Media Company Inc. is unable to publish the furnished insert as a result of such failure to comply, Advertiser and/or Agency shall remain liable for the space cost of such insert.
G. Advertising Copy & Material Deadlines
An Advertiser and/or its Agency agree to submit all copy materials to The Davis Media Company Inc. no later than the material deadline as outlined within the Editorial Calendar for which edition they have ordered. Failure to do so may result in, at The Davis Media Company Inc.’s discretion, refusal to run copy in said issue. If failure to submit copy by material deadline, the Advertisers and/or Agency agrees to submit payment for the total cost of the advertising space as ordered. Advertisers and/or Agencies are required to ensure ad copy meets the proper specifications as per order. The Davis Media Company Inc. will make every attempt to notify an advertiser of an error in sizing or color, however The Davis Media Company Inc. will not be held responsible for an advertisement that does not meet the Ad Specification guidelines as outlined for such publication. Advertisements submitted in color for which black and white was ordered will be gray-
scaled by The Davis Media Company Inc. Advertisers who submit a black and white advertisement for an
order that consists of color advertising, will result in the Advertiser and/or Agency paying for such space as ordered and invoiced.
H. Errors in or Omissions of Advertisements
In the event of The Davis Media Company Inc.’s errors in or omissions of any advertisement(s), The Davis Media Company Inc.’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 The Davis Media Company Inc. for the advertisement), and The Davis Media Company Inc. shall have no liability unless the error/omission is brought to The Davis Media Company Inc.’s attention no later than 60 days after the advertisement is first published. However, if a copy of the advertisement was provided or reviewed by Advertiser, The Davis Media Company Inc. shall have no liability. In no event will The Davis Media Company Inc. have any liability for errors or omissions caused by force majeure or errors in key numbers, nor will The Davis Media Company Inc. 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.
The titles and logos of the magazines published by The Davis Media Company Inc. are registered trademarks. Neither the titles nor the logos of the magazines may be used without the express written permission of The Davis Media Company Inc. and/or its Association Partner.
Advertiser and its Agency, if there be one, each represent that 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 of The Davis Media Company Inc.’s magazine is distributed primarily in North America, with incidental distribution throughout the world.) As part of the consideration to induce The Davis Media Company Inc. to publish such advertisement, Advertiser and its Agency, if there be one, each agrees jointly and severally to defend, indemnify and hold harmless The Davis Media Company Inc., and its employees and representatives, against any and all liability, loss, damage, and expense of any nature, including attorneys’ fees, arising out of any actual or potential claims for libel, invasion of privacy, 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, distribution or transmission of such advertisement. If The Davis Media Company Inc. participated in the creation of an advertisement, The Davis Media Company Inc. will indemnify Advertiser in connection with potential claims only to the extent it has agreed to do so in writing.
K. 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 The Davis Media Company Inc., 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 The Davis Media Company Inc. shall constitute an account stated unless written objection thereto is received by The Davis Media Company Inc. within ten (10) days from the rendering thereof. Payment by Advertiser to Agency shall not discharge Advertiser’s liability to The Davis Media Company Inc. The rights of The Davis Media Company Inc. shall in no way be affected by any dispute or claim between Advertiser and Agency. Advertiser and Agency agree to reimburse The Davis Media Company Inc. 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.
L. 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 The Davis Media Company Inc., nor may Advertiser or Agency authorize any others to use any advertising space.
M. Republication of Advertisements
Advertiser and Agency agree that any submitted advertisements published may, at The Davis Media Company Inc.’s option, be republished or reused by The Davis Media Company Inc. 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 The Davis Media Company Inc. is owned by The Davis Media Company Inc. and may not be otherwise used by Advertiser or third parties without The Davis Media Company Inc.’s prior written consent.
N. Advertising Rates
Rates contained in advertising orders that vary from the rates listed herein shall not be binding on The Davis Media Company Inc. and the advertisements ordered may be inserted and charged for at the actual schedule of rates. Rates and units of space are effective October 2014. Announcement of any changes in rates will be made thirty (30) days in advance of the closing date for the first issue affected by such new rates. Advertising in issues thereafter will be at the rates then prevailing.
O. Rate Base Readership Guarantees
Rate base readership guarantees are determined through annual surveys conducted by The Davis Media Company Inc. on behalf of its Association Partner and are completed by publication recipients.
P. Terms of Sale
There is no agency commission on advertising in The Davis Media Company Inc. publications. Payment is due thirty (30) days from the date of order/invoice. Interest will be charged at a rate of 1.5% per month on past due balances. The Davis Media Company Inc. may at its option require cash with order or change payment terms.
Q. Choice of Law and Forum
All issues relating to advertising will be governed by the laws of the Province of Manitoba applicable to contracts to be performed entirely therein. Any action brought by Advertiser against The Davis Media Company Inc., relating to advertising must be brought in the provincial courts in Winnipeg, Manitoba. The parties hereby consent to the jurisdiction of the provincial courts in Winnipeg, Manitoba in connection with actions relating to advertising.
R. Entire Agreement
The foregoing terms and conditions shall govern the relationship between The Davis Media Company Inc. and Advertiser and/or Agency. The Davis Media Company Inc. 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 The Davis Media Company Inc., no other terms or conditions in contracts, orders, copy, or otherwise will be binding on The Davis Media Company Inc. Failure by The Davis Media Company Inc. to enforce any of these provisions shall not be considered a waiver of such provision.