1) Description of Service
Except as otherwise provided in Sections 2, 3 and 4 of these Secular Press Media Group Internet Advertising Insertion Order Terms and Conditions (referred to as the ”Agreement”, ”IO”, or ”Terms & Conditions”), Secular Press shall display the advertisement(s) beginning on the Start Date and ending on the sooner of (a) the End Date or (b) the end date that the overall sum of the total cost per click charges, impression levels, or flight duration commitments stipulated in the Secular Press Schedule Detail page of the Insertion Order reach the net amount of advertising purchased. Secular Press shall use good faith efforts to deliver the desired number of click-throughs or impressions within the time period stated, but shall not be liable at all for failing to do so.
2) Insertion Order Rules
All requests by Customer for advertising on Secular Press’, or its Affiliates’ web sites and/or newsletters, are governed by these Terms and Conditions. For each advertising request, Customer shall complete and submit to Secular Press an Insertion Order (”IO”). Each IO shall be signed by Customer and Secular Press and numbered with an individual IO number. Upon mutual written consent and approval (which may occur via email), the Parties may make changes to the non-financial details of an advertising campaign previously set forth in an executed IO (e.g., changes to the placement description, creative unit, start/end dates and number of ad requests). No other conditions, provisions, or terms of any sort appearing in any writings or other communications made in connection with such IOs, including without limitation those contained on or accompanying checks or other forms of payment, will be binding on Secular Press, whether in conflict with or in addition to these Terms and Conditions. Any IO’s which quote rates which vary from the rates offered by Secular Press will not be binding on Secular Press , and will be deemed requests for advertising at Secular Press then-current rates unless signed by both parties. IO’s are binding on Customer and not subject to cancellation, except as provided below under Section 6. Customer will use Secular Press services in accordance with applicable law and in a manner which does not interfere with, disturb, or disrupt other network users, services, or equipment, as determined by Secular Press in its sole discretion. Each IO shall specify the types and amount of inventory to be delivered (e.g. impressions, clicks, or other desired actions as the ”Deliverables”), the price for such Deliverables, the maximum amount of money to be spent pursuant to the IO (if applicable), the start and end date of the campaign, if applicable.
Secular Press reserves the right, without liability, to reject, remove and/or cancel any ads which contain content or links which do not meet Secular Press’ advertising specifications, at Secular Press’ sole discretion. Secular Press’ sole liability under this Section shall be to refund the pro-rata portion of amounts paid for the unfulfilled advertising term, if any. Secular Press may redesign its site at its sole discretion at any time.
- Customer hereby grants Secular Press the right to display its advertisement(s) on both the Secular Press Media Group branded Web sites, partner web sites, and emails that are related to the Secular Press Media Group, as defined at http://secularpress.com/about-us. Failure by Secular Press to publish any requested advertisement does not constitute a breach of contract or otherwise entitle Customer to any legal remedy.
- Customer’s failure to comply with all applicable requirements of the Advertising Specifications may delay or prevent delivery of the advertisements and shall give Secular Press the right to immediately terminate the applicable IO;
- Customer shall be solely responsible for the content of its advertisements and any web site linked to from such advertisements and shall indemnify Secular Press for all loss, costs, and damages in connection with any claims of infringement of any third party rights. Customer represents, warrants and covenants to Secular Press that at all times, (a) it is fully authorized to publish the entire contents and subject matter of all requested advertisements (including, without limitation, all text, graphics, URLs, and Internet sites to which URLs are linked); (b) all such materials and Internet sites comply with all applicable laws and regulations and do not violate the rights (including, but not limited to, intellectual property rights) of any third party; (c) it has the full corporate rights, power and authority to enter into this IO and to perform the acts required of it hereunder, and its execution of this IO does not and will not violate any agreement to which it is a Party or by which it is otherwise bound, or any applicable law, rule or regulation; and (d) each such Internet site is controlled by Customer and operated by Customer or its independent contractors, is functional and accessible at all times, and is suitable in all respects to be linked to from the applicable site containing the advertisement.
- It is the Customer’s obligation to submit Advertising Material in accordance with Secular Press’ then existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Secular Press’ public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and material due dates) (collectively “Policies”).
- Public Announcements. Customer hereby grants Secular Press permission to publicize the fact that it is a client of Secular Press in a press release. However, Customer shall not use, display or modify Secular Press’ trademarks in any manner without the prior written consent of Secular Press.
4) Privacy and Compliance
5) Payment Terms and Calculations
Customer shall be invoiced by Secular Press on a monthly basis upon completion of the calendar month in which the advertising was displayed. Secular Press’ payment terms are net 30 days from the date of invoice. In addition to any other rights, Secular Press may immediately remove Customer’s advertisements in the event of non-payment by Customer within such time period. All sums payable by Customer to Secular Press under this Agreement are exclusive of any sales tax, indirect or similar taxes chargeable on any supply to which those sums relate. All unpaid advertising fees shall accrue interest at the rate of 1½% per month until paid, or the legal maximum, whichever is less. All billing calculations are based solely on the ad impression or quick count metrics as calculated by Secular Press (including, but not limited to CPM and CPC), not Customer or third party calculations, unless otherwise agreed to in writing in the Secular Press IO or Schedule Detail page.
6) Term and Termination
This Agreement is effective upon the signature of both parties of the terms and conditions stated herein by signing the attached IO. This Agreement may be terminated by Customer only if a material breach of this Agreement remains uncured after the non-breaching party has given thirty (30) days prior written notice to the breaching party specifying the breach. However, either Party may cancel any specific IO at any time with at least twenty (20) days’ prior written notice to the other Party. So long as any IO remains in effect, these Terms and Conditions shall also remain in effect. If any IO is cancelled for any reason, Customer shall pay to Secular Press, within thirty (30) days after such cancellation, all amounts not yet paid for such delivered ad requests up to the effective date of cancellation. IF EITHER PARTY TERMINATES ANY IO, CUSTOMER’S SOLE REMEDY WILL BE A REFUND OF ANY PRE-PAID FEES IN EXCESS OF THE FEES OWED TO SECULAR PRESS UNDER THE IO. NEITHER SECULAR PRESS NOR ANY OF ITS AFFILIATES WILL HAVE ANY OTHER LIABILITY OF ANY NATURE TO CUSTOMER.
7) Liability, Warranty & Indemnity
- EXCEPT AS OTHERWISE STATED HEREIN, SECULAR PRESS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES AS TO THE NUMBER OF VISITORS TO OR PAGES DISPLAYED ON THE SECULAR PRESS SITE OR THE FUNCTIONALITY, PERFORMANCE, OR RESPONSE TIMES OF THE SECULAR PRESS SITE. SECULAR PRESS DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY OTHER LOSS, INJURY, COST OR DAMAGE SUFFERED BY CUSTOMER OR ANY THIRD PARTY AND SHALL IN NO EVENT BE LIABLE FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING LOST PROFITS. THIS PROVISION SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT. IN NO EVENT SHALL SECULAR PRESS OR ANY OF ITS AFFILIATES BE LIABLE TO CUSTOMER FOR AN AMOUNT IN EXCESS OF THE TOTAL DOLLAR AMOUNT ACTUALLY RECEIVED BY SECULAR PRESS FROM CUSTOMER FOR THE SPECIFIC AD AT ISSUE.
- Customer agrees to defend, indemnify and hold harmless Secular Press and each of Secular Press’ agents, customers, subcontractors and affiliates, and the officers, directors, and employees of any of the foregoing, from, against and in respect of any and all losses, costs, (including reasonable attorney’s fees) expenses, damages, assessments, or judgments (collectively, ”Liabilities”), resulting from any claim against any such parties in connection with Customer’s advertisement, except to the extent that such claims directly resulted from the gross negligence or willful misconduct of Secular Press.
8) General Provisions
These terms and conditions are governed by the laws of the State of California, USA. Customer consents to the exclusive jurisdiction and venue of courts of San Diego, California, for all disputes related to the subject matter hereof. No joint venture, partnership, employment, or agency relationship exists between Customer and Secular Press. Secular Press will not be deemed to have waived or modified any of these terms and conditions except in writing signed by its duly authorized representative. Customer may not assign its rights hereunder to any third party unless Secular Press expressly consents to such assignment in writing, not to be unreasonably withheld. Modifications to the originally submitted IO will not be binding unless signed by both parties. If any provision of these standard terms and conditions is found invalid or unenforceable pursuant to judicial decree or decision, the remaining provisions will remain valid and enforceable, and the unenforceable provisions will be deemed modified to the extent necessary to make them enforceable. These Terms and Conditions will be deemed to be controlling over all other writings or agreements of any kind between the parties covering the subject matter of the IO, except for alternate (a) payment or (b) cancellation language, as specifically provided in the business terms in the IO or Schedule Detail Page. All notices to Secular Press relating to any legal claims or matters must be made in writing to Secular Press, attn: Group Corporate Counsel, 701 Palomar Road, 3rd Floor Carlsbad CA 92011. If Secular Press and Customer have entered into a Non-Disclosure Agreement, Secular Press and Customer agree that the terms of such agreement will be deemed incorporated herein and further, that all terms and conditions of this Agreement will be deemed Confidential Information as defined therein. If Secular Press and Customer have not entered into a Non-Disclosure Agreement, then each Party expressly undertakes to retain in confidence and to require its agents and contractors to retain in confidence all information and know-how transmitted to such Party that the disclosing Party has identified as being proprietary and/or confidential or which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential. All terms and conditions of this Agreement will be considered confidential and will not be disclosed (except to both Party’s attorneys and accountants on a need-to-know basis) without the prior written consent of the other Party. The Parties acknowledge and agree that Secular Press may archive an electronic copy of the fully executed Agreement. Except as specifically provided herein, this Insertion Order and Terms & Conditions constitute the entire understanding and Agreement between the parties and supersedes any and all prior understandings and/or Agreements between the parties with respect to the subject matter. No change, amendment or modification of any provision of this Agreement or waiver of any of its terms will be valid unless set forth in writing and mutually agreed to by the parties.