STANDARD TERMS & CONDITIONS for MEDIA INSERTION ORDERS

Butler, Shine, Stern & Partners, LLC (“BSSP”), who is placing the Insertion Order (together with these Standard Terms and Conditions, the “IO”) on behalf of the advertiser named on the face of the Insertion Order (“Advertiser”), as Advertiser’s limited agent pursuant to California Sales & Use Tax Regulation 1540 (“Limited Agent”), and the publisher/media vendor (“Publisher”) agree that, upon acceptance by Publisher, the IO will be governed by the terms and conditions specified herein.

 

1. No Changes, Additions or Deletions to IO. The IO constitutes an offer expressly limiting Publisher’s acceptance to the terms and conditions contained herein. No term or condition of Publisher’s invoice or of any other document additional to or different, in any manner or to any extent, from these terms and conditions will become part of the IO unless explicitly referenced and agreed to in writing by BSSP. Acceptance by Publisher of the IO will occur on the earliest of: (i) written acceptance of the IO by Publisher; (ii) publication by Publisher of the advertisement(s) ordered herein, in accordance with the terms and conditions specified in the IO; or, (iii) proper issuance of an accurate and complete invoice by Publisher with respect to the IO. Publisher will check all information provided by BSSP in the IO for discrepancies and errors of any kind and to any extent and, upon Publisher’s discovery of any discrepancy or error, will promptly notify BSSP and provide BSSP a reasonable opportunity to correct any such discrepancy or error.

 

2. Advertising Materials. Publisher may not make any change to any advertising material provided by BSSP without BSSP’s written approval prior to publication. If Publisher anticipates or believes that any advertising material provided by BSSP in connection with the IO may need to be changed for any reason, Publisher will notify BSSP immediately and give BSSP a reasonable opportunity to make such change(s), at BSSP’s sole and exclusive discretion. At BSSP’s direction, Publisher will either: (i) hold all advertising material for future use and treat the advertising material in the same fashion that Publisher treats its own most confidential information, and in no event with less than a commercially reasonable standard of care; or, (ii) return all advertising materials to BSSP in a manner which ensures the confidential nature of the materials.

 

3. Placement. Advertising material may be published only in accordance with the schedule and instructions set forth in the IO. Upon acceptance of the terms and conditions of the IO, Publisher agrees to use best efforts to publish the advertising material. If, after acceptance of the terms and conditions of the IO, Publisher is unable to comply with any part of the schedule or instructions contained in the IO, Publisher will notify BSSP immediately. If a substitute time period, or make-good, is not acceptable to BSSP, in BSSP’s sole and exclusive discretion, Publisher will make a pro-rata reduction of charges based upon the volume discounts or earned rate reductions, if any, that would have been applicable absent any default or delay.

 

4. Rates. Subject to the terms and conditions of the IO, charges for advertising space will be billed at the rate(s) specified in the IO.

 

5. Payment and Payment Liability.

1. Sequential Liability. In placing the IO, BSSP is acting solely as Advertiser’s Limited Agent. Publisher agrees and stipulates that BSSP will only be liable for payments solely to the extent proceeds have properly cleared from Advertiser to BSSP’s account(s), in accordance with BSSP’s procedures and processes, for advertising space ordered in accordance with the IO and such proceeds are not in dispute. For sums not cleared to BSSP in the manner set forth above, or sums cleared but in dispute, Publisher agrees and stipulates that Advertiser will be held solely liable for such sums.
2. Contingencies. Notwithstanding anything herein to the contrary, payment of amounts due under the IO is contingent upon: (a) Publisher’s compliance with the schedule, instructions, terms and conditions set forth in the IO; (b) Publisher’s acceptance of the IO without modification or amendment, in any manner or to any extent, pursuant to §1 above; (c) the published advertisement(s) being free from inaccuracies and errors caused, in whole or in part, by Publisher, its employees, contractors, agents or representatives; and, (d) publication of the advertisement(s) in accordance with the schedule and instructions specified in the IO. If Publisher fails to publish an advertisement placed in the IO, for whatever reason, such advertisement nevertheless will be credited towards BSSP’s volume discounts or earned rate reductions, if any.

 

6. Cancellation & Termination. BSSP may cancel all or portion of the IO prior to the Publisher’s stated cancellation or closing date, or, if applicable, prior to a later date specified in the IO, without any monetary or other penalty to Advertiser.

 

7. Proof of Publication. Within thirty (30) days after publication of the advertising materials, Publisher will provide BSSP with a tear sheet, or another form of proof of publication acceptable to BSSP, for each advertisement placed pursuant to the IO. Publisher will identify each such tear sheet or proof with the purchase order number contained herein. Unless Publisher is a member of either the Audit Bureau of Circulations or BPA Worldwide, BSSP will be entitled, upon request, to a statement of net paid circulation verified by a certified public accountant, or, in lieu thereof, the right to examine Publisher’s circulation books.

 

8. Transportation Charges. BSSP will prepay transportation charges on all advertising materials sent to Publisher. If such charges are not prepaid, Publisher may either reject the advertising materials or accept them and pay the charges. In the latter case, BSSP will promptly reimburse Publisher for such charges incurred. If, for any reason, Publisher does not receive the advertising materials by the date specified herein, Publisher will notify BSSP immediately to allow for BSSP’s timely preparation of replacement materials. Publisher will reimburse BSSP for any and all shipping and production costs incurred by BSSP if BSSP is required to replace advertising materials, in whole or in part, due to any loss or mishandling by Publisher, its employees, contractors, agents or representatives.

 

9. Confidentiality. Publisher, its employees, contractors, agents and representatives will keep confidential and will not disseminate, reveal, or otherwise make available to others, or use for purposes other than those specified in the IO, all information concerning or related, directly or indirectly, to BSSP or Advertiser that Publisher may acquire in the course of its dealings with BSSP or fulfilling the IO, including, but not limited to, all advertising materials prior to their date of first publication, any media-planning and marketing information, or any information related to BSSP’s or Advertiser’s trade secrets and ideas, plans, techniques, products or services, business or business operations. BSSP and Advertiser retain all rights, title and interest in and to their respective confidential information, and Publisher will no rights or interests in BSSP’s or Advertiser’s confidential information. Immediately upon BSSP’s or Advertiser’s request, Publisher will either return all materials embodying confidential information or destroy the confidential information, rendering it unrecoverable. Publisher and BSSP agree that the unauthorized use or disclosure of the confidential information is likely to cause injury that is not readily measurable in monetary damages, and therefore irreparable.

 

10. Force Majeure. If, due to public emergency or necessity, force majeure, restrictions imposed by law, acts of God, labor disputes, or for any other cause, including mechanical or electronic breakdowns, beyond Publisher’s control, there is an interruption, delay or omission with respect to any publication of advertising materials provided for in the IO, Publisher will make commercially reasonable efforts within five (5) business days to recommend a substitute publication or time period for publication. If such substitute time period, or make-good, is not acceptable to BSSP, in BSSP’s sole and exclusive discretion, Publisher will make a pro-rata reduction of charges, based upon the volume discounts or earned rate reductions that would have been applicable absent such interruption, delay or omission.

 

11. Indemnity. Publisher will defend, indemnify and hold BSSP, its managers, officers, employees, contractors, representatives and agents harmless from and against any and all claims, causes, or allegations (whether threatened or pending), judgments, expenses, damages, liabilities, obligations, fees (including reasonable attorneys’ fees), costs and losses arising out of or related to: (a) any failure by Publisher to comply in any manner or to any extent with the terms and conditions of the IO; (b) any inaccuracy or error in any published advertisement caused, in whole or in part, by Publisher, its employees, contractors, agents or representatives; (c) any modification or amendment Publisher makes, in any manner or to any extent, to the advertising materials provided in connection with the IO, other than modifications and amendments that BSSP authorizes in writing; (d) any failure, in any manner or to any extent, by the Publisher to publish an advertisement within the time-frame specified in the IO; (e) any negligent, reckless or intentional misconduct by Publisher or Publisher’s agents, employees, contractors or representatives; or (f) the infringement, violation or misappropriation of the intellectual property rights, other proprietary rights or property rights of a third party.

 

12. General Terms.

1. The IO is not assignable by the Publisher without the prior written consent of BSSP. “Assignment” is defined to include the purchase or acquisition of all or substantially all of the capital stock, equity interests or assets of Publisher, and any merger or other combination by operation of law by Publisher.
2. All obligations under the IO are subject to applicable federal, state, and local laws, rules and regulations.
3. No payments or approvals received by Publisher in connection with the IO will be deemed to constitute BSSP’s acceptance of a published advertisement or limit, in any manner or to any extent, BSSP’s or Advertiser’s rights under the IO.
4. The IO will be governed by, and construed and enforced in accordance with, the substantive laws of the State of California, without regard to its principles of conflicts of laws. All litigation arising from or relating to any transactions that are the subject of the IO will be filed in any court of competent subject matter jurisdiction in the city of San Francisco, California. The parties consent to the personal jurisdiction of such courts over them, stipulate to the convenience and fairness of proceeding in such courts and covenant not to assert any objects to proceeding in such courts based on any alleged unfairness or inefficiency of proceeding in such courts.
5. Notwithstanding any other portion of the IO, the terms of §2, §5, §6, §7, §8, §9, §11 and §12 will survive expiration, termination, cancellation or completion of BSSP’s, Advertiser’s and Publisher’s obligations pursuant to the IO.