Standard Terms & Conditions
updated April 2017
The following terms and conditions (the “Standard Terms”) shall be incorporated by reference into all Insertion Orders (“IO”) submitted to UBM, LLC. (“UBM”) by Advertiser or its advertising agency:
A. Terms: Invoices are rendered on the publication date of each issue of a printed magazine, e-mail newsletter or digital edition of a magazine, and once per month in arrears for website advertising campaigns, and are due upon receipt.
B. UBM holds the Advertiser and its advertising agency jointly responsible for paying all duly authorized advertising inserted in or attached to any magazines, e-newsletters or websites owned or operated by UBM. All past due payments may be re-invoiced directly to the Advertiser, who will be held fully responsible for payment.
C. Agency commission: 15% of gross billings on space and premium positions. Production charges are not subject to agency commission. Agency commission will be disallowed on all past due invoices. In the event Advertiser’s account is placed for collection, Advertiser and agency agree to pay UBM for all reasonable collection costs and/or attorneys’ fees incurred. Advertiser and agency also agree to pay finance charges on the unpaid account balance at the rate of 1-1/2% per month or the maximum permitted by law.
D. UBM will not be bound by any terms, conditions or provisions appearing on IOs or copy instructions which conflict with provisions of these Standard Terms, including, without limitation, sequential liability statements from advertising agencies. In the event of any inconsistency between an IO and/or copy instructions and these Standard Terms, the Standard Terms shall control.
E. Except as otherwise expressly provided in the IO, positioning of advertisements within an UBM magazine, e-newsletter, website or on any page is at the sole discretion of UBM. UBM may redesign or modify the organization, structure and/or look and feel of the magazine, e-newsletter, website or any other advertising product at any time and without notice. Further, UBM does not guarantee that access to its website will be uninterrupted or that the website or any ads placed on it will meet the Advertiser’s requirements.
F. Advertiser shall deliver to UBM the content, graphic images and other materials for the advertisement in a form and manner to be specified by UBM. UBM will not be required to publish any advertisement that is not received in accordance with the foregoing and reserves the right, at UBM’s sole discretion, to charge Advertiser, at the rate specified in the IO, for inventory held by UBM pending receipt of acceptable materials from Advertiser, or to publish in substitution any prior advertisement submitted by Advertiser until such time as UBM can reasonably begin publication of the advertisement set forth in the IO.
G. Each insertion order for an UBM web product shall specify: (a) the type(s) and amount(s) of Inventory to be delivered (e.g. impressions, clicks or other desired actions) (the “Deliverables”); (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the IO (if applicable), (d) the start and end dates of the campaign, and (e) the identity of and contact information for any third party ad server (“3rd Party Ad Server”), if applicable. Other items that may be included are but are not limited to: reporting requirements such as impressions or other performance criteria; any special advertisement delivery scheduling and/or advertisement placement requirements; and specifications concerning ownership of data collected. UBM will make commercially reasonable efforts to notify Advertiser or its Agency, if applicable, within two (2) business days of receipt of an
IO signed by Advertiser if the specified inventory is not available. UBM will use commercially reasonable efforts to comply with the IO including all advertisement placement restrictions, requirements to create a reasonably balanced delivery schedule, and to provide within the scope of the IO, an advertisement to the Site specified on the IO when such Site is called up by an Internet user. Any exceptions must be approved by Advertiser in writing.
UBM will use commercially reasonable efforts to provide Advertiser at least 10 business days prior written notification of any material changes to the Site that would change the target audience or significantly affect the size or placement of the advertisement specified in the affected IO . Should such a modification occur with or without notice, as Advertiser’s sole remedy for change or notice, Advertiser may immediately cancel the remainder of the IO without penalty within the 10 day notice period. If UBM fails to provide such notification, Advertiser may cancel the remainder of the IO within 30 days of such modification, and in such case shall not be charged for any affected advertisements delivered after such modification. UBM will submit or otherwise make electronically accessible to
Advertiser promptly after acceptance of an IO final technical specifications, as agreed upon by the parties. Advertisement delivery shall comply with editorial adjacencies guidelines stated on the IO. UBM shall make reporting available as specified in the IO. UBM shall monitor delivery of the advertisements, and shall notify Advertiser either electronically or in writing as soon as possible if UBM believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for make good consistent with these Terms and Conditions. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any advertisement (placement or creative unit), Advertiser and UBM will make an effort to agree upon the conditions of a makegood placement either in the IO or at the time of the shortfall. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for 3rd Party Ad served activity. Advertiser will not be charged by UBM for any additional advertisements above any level guaranteed or capped in the IO.
H. All advertisements are accepted and published by UBM on the representation that the agency and/or Advertiser are properly authorized to publish the entire contents and subject matter thereof.
I. All contents of advertisement are subject to UBM’s approval. UBM reserves the right to reject or cancel any advertisement, IO, URL link, space reservation or position commitment,at any time, for any reason whatsoever even if the advertising has been published previously by UBM. In the event of such occurrence, UBM shall return to Advertiser the amount of the booked value of the advertisement as Advertiser’s sole remedy for any claims of loss or damage arising from such rejection or cancelation.
J. Advertiser hereby grants UBM the right and license to use, reproduce, transmit, and distribute all creative materials supplied by or on behalf of Advertiser, including without limitation, all text, graphics, illustrations and photographs (the “Creative”). Advertiser represents and warrants that: (i) it has all the necessary rights in the Creative; (ii) the Creative does not violate any applicable law or regulation; and (iii) the Creative does not violate or infringe upon any third party right in any manner or contain any material or information that is defamatory, libelous, slanderous, that violates any person’s right of publicity, privacy or personality, or may otherwise result in any tort, injury, damage or harm to any person. Advertiser acknowledges that UBM is relying on the foregoing representations and warranties. Advertiser agrees to indemnify, defend and hold UBM and its affiliates, and their respective officers, directors and employees, harmless from and against any and all expenses and losses of any kind (including reasonable attorneys’ fees and costs) incurred based upon a breach of any of the foregoing representations and warranties or in connection with any claim arising from or related to any advertisement supplied by Advertiser or its agents and run by UBM.
K. UBM shall not be liable for any omitted, misplaced, or mispositioned advertisements.
L. An order for an advertisement in an UBM magazine or e-newsletter may be cancelled by Advertiser for any reason up to the issue’s published ad close date (the “Close Date”). Advertiser will be responsible for, and hereby agrees to pay, orders cancelled after the Close Date, regardless of the date of ad placement.
M. An order for an advertisement on any website owned or operated by UBM may be cancelled for any reason upon thirty (30) days written notice from the Advertiser.
N. A 1/4 page ad is the minimum rate holder.
O. In the event Advertiser notifies UBM of a request and/or required change of copy (the “Copy Change”) and Advertiser fails to deliver the Copy Change to UBM by the Close Date, Advertiser will forfeit such advertisement placement and Advertiser will be responsible to pay for the forfeited advertisement.
P. Advertiser will be short-rated if, within a 12-month period from the date of the first insertion, Advertiser does not use the amount of space upon which its billings has been based. Advertiser will be rebated if, within a 12-month period from the date of the first insertion, Advertiser has used sufficient additional space to warrant a lower rate than that at which it has been billed.
Q. Costs incurred by UBM for production work on advertisements will be charged to the Advertiser regardless of whether or not the ad runs. Advertiser will be charged for any file modifications, creative or typography services provided by UBM.
R. UBM will hold Advertiser’s advertising materials for a maximum of one year from the date of the issue in which the ad last ran. UBM will not be held responsible for consequential costs or other damages due to loss or damage of digital ad materials, art, proofs or transparencies.
S. Reader response inquiries are provided as a service. UBM disclaims all liability and responsibility for inaccuracies. Except as otherwise expressly provided in an IO accepted by UBM,
UBM makes no guarantee with respect to usage statistics for any advertisement.
T. UBM expressly disclaims any and all warranties, whether express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose with regard to its advertising services, including any and all oral and written information communicated about such services. To the maximum extent permitted by applicable law, in no event shall UBM be liable for any consequential, incidental, direct, indirect, special, punitive, or other damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of this agreement, even if UBM has been advised of the possibility of such damages. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to advertiser. In no case, and under no theory of law, shall UBM’s liability for any error exceed the amount due or paid for the advertisement giving rise to aforementioned error. Notwithstanding the foregoing, UBM shall have no liability for (i) any failure or delay resulting from conditions beyond UBM’s control; or (ii) errors in content or omissions in any creative or advertising materials provided by Advertiser. In the event of a breach by Advertiser, UBM may terminate this Agreement immediately without notice or cure period, without liability to UBM.
Either party may terminate this Agreement for convenience, with or without cause, upon thirty (30) days written notice to the other party. In the event of any termination, Advertiser shall remain liable for any amount due under an IO for advertisements delivered by UBM and such obligation to pay shall survive any termination of this Agreement. Under no circumstances shall UBM be liable for any indirect, incidental, special or consequential damages (including, without limitation, loss of profit or impairment of goodwill) of any Advertiser. Under no circumstances shall UBM’s direct or indirect liability to any advertising agency or Advertiser exceed the invoiced cost of the advertisement.
U. Applicable if 3rd Party Server is used. UBM will track delivery through its ad server and Advertiser will also track delivery through its proprietary or subcontracted 3rd Party Ad Server whose identity is set forth in the IO. Advertiser may not substitute the 3rd Party Ad Server specified in the IO without UBM’s prior consent. Advertiser and UBM agree to give reciprocal access to relevant and nonproprietary statistics from both ad servers, or if such is not available, provide weekly placement level activity reports to each other. In the event that UBM’s ad server measurements are higher than those produced by the Advertiser’s 3rd Party Ad Server by more than 10% over the invoice period, Advertiser will facilitate a reconciliation effort between UBM and 3rd Party Ad Server.
Where Advertiser utilizes a 3rd Party Ad Server UBM will not bonus more than 10% above the Deliverables specified in the IO without prior written consent from the Advertiser. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for 3rd Party Ad served activity. If a 3rd Party Ad Server is being used and Advertiser notifies UBM that the guaranteed or capped levels stated in the IO have been reached, UBM will use commercially reasonable efforts to suspend delivery. When applicable, 3rd Party Ad Server tags shall be implemented so that they are functional in all respects.
V. These Standard Terms, together with IO s submitted by Advertiser, (i) shall be governed by and construed in accordance with the laws of the State of New York and the United States, without giving effect to principles of conflicts law; (ii) may be amended only by written agreement executed by an authorized representative of each party; and (iii) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements regarding the subject matter hereof, whether written or oral, between the parties. Failure by either party to enforce any provision of these Standard Terms shall not be deemed a waiver of future enforcement of that or any other provision. Advertiser may not resell, assign, or transfer any of its rights hereunder. Section headings are for convenience only and shall not be construed as part of this Agreement.