TERMS AND CONDITIONS
The following terms and conditions govern the advertising or marketing services performed or to be performed by YFS Media (“Publisher”) for (“Advertiser”) and as described on the accompanying insertion order and any subsequent orders, all of which are hereby incorporated (collectively, “Insertion Order”), and supersede any prior agreements or conflicting terms or conditions contained in, or provided with, the Insertion Order. These terms and conditions, together with the Insertion Order (IO), are referred to herein as the “Agreement”.
Advertiser will provide Publisher with the content of all logos, graphic files, links, pop-up or pop-under boxes, e-mail text, telemarketing scripts or other advertising material (“Content”) to be displayed, distributed or used. Advertiser may change the Content at any time upon written notice to Advertiser, and Advertiser will immediately implement all such requested changes within 3 business days of receipt. Publisher shall not, without Advertiser’s prior written instruction or consent, (i) alter or modify the Content (ii) create, publish, distribute or permit any written material (other than the Content) that makes reference to Advertiser, or (iii) make any representations, warranties or other statements concerning Advertiser, Advertiser’s products, services, website or website policies, or the Content. Each party will notify the other immediately upon discovery of any malfunctioning of the Content or any links to Advertiser’s website.
Compensation for Advertising Services.
Publisher agrees to provide the services described below in the Insertion Order (“Services”), and Advertiser agrees to pay the advertising fees listed on the Insertion Order. Payment is due in advance of campaign launch by Advertiser unless credit is extended from the Publisher. Campaign will begin within 30-60 days of the signing of this Agreement. Publisher will invoice Advertiser for the services provided on a calendar-month basis with the net cost based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of Insertion Order on a net 21 payment term. For contracted media buys under $5,000 USD Publisher will invoice advertiser upon receipt of the Insertion Order on a due upon receipt payment term. Invoices not paid within 21 days of the invoice date are subject to a 1.5 percent monthly finance charge. The remedy for any failure to deliver advertising impressions is a make-good at the Publisher’s discretion.
If Advertiser has been extended credit, an initial invoice will be sent by Publisher upon completion of the first month’s delivery, or immediately upon completion of the IO, whichever is earlier. Invoices will be sent to Advertiser’s billing address as set forth on the IO and will include information reasonably specified by the Advertiser. All invoices (other than corrections of previously provided invoices) pursuant to the IO will be sent within 30 days of delivery of all Deliverables.
The ads will be served, monitored and delivery validated by the DoubleClick (DFP) ad delivery system, managed by the Publisher. Ad delivery data, provided by DoubleClick (DFP), will be considered the accurate number of impressions served by both Publisher and Advertiser.
Cancellation and Termination.
Without Cause. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or any portion thereof, as follows: i. With 14 days’ prior written notice to Publisher, without penalty, for any guaranteed Deliverable, including, but not limited to, CPM Deliverables. For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight (8) days prior to serving of the first impression, Advertiser will only be responsible for the first six (6) days of those Deliverables. ii. With seven (7) days’ prior written notice to Publisher, without penalty, for any non-guaranteed Deliverable, including, but not limited to, CPC Deliverables, CPL Deliverables, or CPA Deliverables, as well as some non-guaranteed CPM Deliverables. iii. With 30 days’ prior written notice to Publisher, without penalty, for any flat fee-based or fixed-placement Deliverable, including, but not limited to, roadblocks, time-based or share-of-voice buys, and some types of cancelable sponsorships. iv. Advertiser will remain liable to Publisher for amounts due for any custom content or development (“Custom Material”) provided to Advertiser or completed by Publisher or its third-party vendor prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, Publisher will specify the amounts due for such Custom Material as a separate line item. Advertiser will pay for such Custom Material within 30 days from receiving an invoice therefore.
For Cause. Either Publisher or Advertiser may terminate an IO at any time if the other party is in material breach of its obligations hereunder, which breach is not cured within 10 days after receipt of written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches. Additionally, if Advertiser breaches its obligations by violating the same Policy three times (and such Policy was provided to Advertiser) and receives timely notice of each such breach, even if Advertiser cures such breaches, then Publisher may terminate the IO or placements associated with such breach upon written notice. If Advertiser does not cure a violation of a Policy within the applicable 10-day cure period after written notice, where such Policy had been provided by Publisher to Advertiser, then Publisher may terminate the IO and/or placements associated with such breach upon written notice.
Short Rates. Short rates will apply to canceled buys to the degree stated on the IO.
Compliance with Law.
Each party shall comply with all federal and state laws and regulations and obtain and maintain all licenses and registrations applicable to its business, the operation of its website, and any advertising or promotional activities. Publisher warrants that in providing the Services, it will comply with all applicable telemarketing, anti-Spam, privacy and do-not-call laws and requirements. Each party represents and warrants that its website will not contain any lewd, obscene, pornographic, hateful, violent, defamatory or libelous content, will not violate any laws regarding unfair competition, anti-discrimination or false advertising, and will not contain viruses, Trojan horses, worms, time bombs, or other similar harmful programming routines.
Termination on Default.
In case of default on the performance of any obligation imposed under this Agreement where the default remains uncured by the defaulting Party for ten (10) days after the non-defaulting Party provides written notice of default, the nondefaulting Party shall have the right to terminate this Agreement.
Best Efforts/No Warranty.
The Publisher and the Advertiser agree to use their best efforts to fulfill or meet all conditions and contingencies of this contract. The Publisher and the Advertiser further agree to meet all of their performance obligations imposed under the terms of this contract.
Advertiser grants Publisher a revocable, non-exclusive, non-transferable worldwide license to use, reproduce and transmit, during the term of the Insertion Order, its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology whether currently used or which may be developed or used by it in the future (“Marks”) solely for the purpose of displaying the Content. Advertiser owns and shall retain all right, title and interest in its Marks.
If the Services include sending e-mails, Publisher must obtain Advertiser’s prior written consent to the content and format of all proposed e-mails, and Publisher shall not alter or revise the format or content of an e-mail after it has been approved by Advertiser. Publisher (1) shall distribute such e-mails only to those recipients who have agreed, in advance, to receive such transmissions from Publisher (i.e., “opted-in”); (2) shall not use the Advertiser name or Marks in the originating or return e-mail address line, header or subject line of any e-mail transmission;
Each party hereby agrees to indemnify, defend and hold harmless the other party and its directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys’ fees) brought by a third party, arising out of a breach, or alleged breach, of any of its warranties, representations or obligations herein.
The Parties agree that the signatures on this Agreement, as well as any other documents to be executed under this Agreement, may be delivered by facsimile in lieu of an original signature, and the Parties agree to treat facsimile signatures as original signatures. The Parties further agree to be bound by this provision.
This Agreement creates no agency relationship, and neither party shall have authority to obligate or bind the other in any respect.
This Agreement shall be governed by and enforced in accordance with the laws of the state of North Carolina. The Parties agree that any disputes will be adjudicated in the County of Wake, in the City of Raleigh, unless agreed to by mutual consent.
If any provision in this Agreement is held to be invalid or unenforceable, it shall be ineffective only to the extent of the invalidity, without affecting or impairing the validity and enforceability of the remainder of the provision or the remaining provisions of this Agreement.
The terms and conditions of this Agreement are binding on and shall inure to the benefit of the Parties and their respective heirs, representatives, successors and permitted assigns.
The waiver by either Party of a breach by the other Party of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
No modification or amendment hereto shall be effective unless made in writing, signed by the Party to be charged.
This Agreement contains the entire understanding of the Parties regarding the subject matter of the Agreement. It supersedes any prior understandings and agreements between the Parties regarding the subject matter of the Agreement.
All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally or by registered, by certified mail (return receipt requested), by nationally recognized delivery service, by email or fax with receipt evidencing transmittal addressed as follows:
If to the Company:
Attn: Advertising Department
If to the Advertiser:
Contact us for mailing address.
NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, EXCEPT FOR THOSE SET FORTH HEREIN. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT, UNLESS SUCH DAMAGES OCCUR AS THE RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH PARTY.
By placing a media buy, the parties agree that these Insertion Order Terms and Conditions are dated and effective as of the date listed on the Invoice.
Thank you for advertising with YFS Media. Please contact us for more information on our advertising opportunities, including specification sheets and creative requirements here.