NEWSLETTER ADVERTISING TERMS & CONDITIONS
Avocadough Toast will distribute Advertiser’s campaign(s), through its network of newsletters, as agreed upon by the the parties (collectively, the “Avocadough Toast Network”). The following terms and conditions govern the placement and delivery of advertising (“Ad” or “Advertisement(s)”) as set forth in any agreement between the parties, to which these terms and conditions are attached (collectively referred to herein as the “Agreement”).
The advertiser / customer (hereinafter, “Advertiser”) is liable for any and all amounts or services owed. Payments are payable by check or wire. If a customer uses Fax Check, Advertiser agrees to allow Avocadough Toast to process payment using CheckMAN PRO, ACH or other check processing service within seven (7) days of receipt.
DELIVERY OF ADS
Advertiser will, at its sole cost and expense, create and deliver all content required for any Ad to Avocadough Toast. Advertiser shall be solely responsible and liable for all Ads created and delivered to Avocadough Toast, including, without limitation, the content contained therein and the consequences of their display in the Avocadough Toast Network. Notwithstanding the foregoing, if such content does not conform to Avocadough Toast’s technical specifications or does not arrive timely enough to deliver such Ad on the agreed display dates, then Avocadough Toast, in its sole discretion, may, if applicable: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (i) the non-conforming content is corrected, or (ii) the late-arriving content is received. Once an Advertiser has submitted an Ad to Avocadough Toast, Advertiser is prohibited from changing any aspects of that Ad or any Linked Content (as defined below), including, without limitation, any content, images, claims, or offer terms, without Avocadough Toast’s prior consent, which shall not be unreasonably withheld. Failure to comply with the foregoing provision shall be a breach of this Agreement by Advertiser. Avocadough Toast may require at least forty-eight (48) hours to incorporate any changes requested by the Advertiser to a particular Advertisement or campaign into the Avocadough Toast Network. Avocadough Toast may, in its sole discretion, reject or remove any Ad, for any reason, in which event Avocadough Toast will refund any amounts paid in advance for such Ad or a prorated portion of such fees if such Ad is removed after a period of display. Advertiser may not use a third party to serve, track or administer any Ad without Avocadough Toast’s prior written consent. Advertiser acknowledges that third-party tracking, tagging and/or pixeling of placements will not be available. All reporting with respect to delivery and payment due shall come directly from Avocadough Toast. Avocadough Toast reserves the right to make basic grammatical and/or spelling edits to an Ad even after it has been approved by Advertiser. Avocadough Toast will make every effort to secure a subsequent approval for these grammatical and/or spelling edits; however, previously approved Ads may be sent without a second approval of Avocadough Toast’s grammatical and/or spelling edits.
GENERAL NEWSLETTER ADVERTISING REQUIREMENTS
If Avocadough Toast distributes Ad(s) by newsletter, the following requirements apply:
- Each Ad provided by Advertiser must comply with the CAN-SPAM Act by including, without limitation, identification of the message as an advertisement or solicitation, a physical postal address for the “sender” of the message (as that term is defined in the CAN-SPAM Act), a “from” line on all email transmissions that clearly and accurately identifies the party whose products or services are promoted in the email, a “subject” line that is reasonable related to the subject matter, and a clear, conspicuous, and functioning electronic mechanism by which the recipient of the email can request not to receive future commercial email messages from Advertiser.
- Advertiser must maintain an up-to-date master suppression list of individuals who have requested not to receive commercial email from Advertiser (regardless of the source from where such requests were received).
- If Publisher requests, Advertiser must provide Avocadough Toast a copy of its most recent suppression list within seven (7) days during the campaign and Publisher has right to use suppression list against its in-house opt-in file at its discretion.
- Avocadough Toast may, at its sole discretion, provide Advertiser’s suppression list to its Affiliates for purposes of compliance with the CAN-SPAM Act, but makes no representations or warranties regarding any Affiliate’s use of the suppression list, including, without limitation, that Affiliates will use the suppression list.
SPECIAL NEWSLETTER TERMS
Avocadough Toast does not guarantee exact email send times and reserves the right to adjust send times in its sole and absolute discretion.
Advertiser may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Avocadough Toast Network. Advertiser may not take any action that imposes an unreasonable or disproportionately large load on the Avocadough Toast Network infrastructure. Advertiser agrees that any unauthorized and/or unlawful use of the Avocadough Toast Network would result in irreparable injury to Avocadough Toast for which monetary damages would be inadequate. In such event, Avocadough Toast shall have the right, in addition to other remedies available to it pursuant to the Agreement, to immediate injunctive relief against Advertiser without the need to post a bond.
If Advertiser agrees to a rate based on cost per thousand (CPM), Avocadough Toast shall, together with the invoice, provide Advertiser with the computation of the number of newsletters sent, the CPM rate for such distribution, and the total amount due. Avocadough Toast’s count shall be final in any dispute as to total emails sent and/or delivered.
CANCELLATION AND RIGHT TO REFUSE UNACCEPTABLE ADVERTISING
Notwithstanding any other provisions in this Agreement, Avocadough Toast reserves the right to refuse, reject, or cancel, in its sole and complete discretion, at any time any advertising that it deems unacceptable or inappropriate for any reason, including Ads that fail to comply with the Avocadough Toast Advertising Guidelines. Without limiting the foregoing, Avocadough Toast does not accept advertising from companies that produce or provide pornographic products or services (which Avocadough Toast shall have sole and unilateral discretion to define) or their subsidiaries, or foundations funded by such companies whose function is to increase the public’s acceptance or tolerance of such products or services. This Agreement is voidable by Avocadough Toast immediately if Advertiser fails to disclose (or conceals or misrepresents) any involvement with pornographic products or services or if the Advertiser’s conduct would otherwise violate applicable consumer protection laws and regulations. Advertiser understands that Avocadough Toast is a news agency and that breaking news and other events may warrant cancellations. In the event Avocadough Toast must cancel an advertising campaign without notice, Avocadough Toast will make reasonable efforts to reschedule the advertising campaign for a later time or date. See also Appendix A for additional terms and conditions governing cancellation and rescheduling of advertising campaigns in select mediums.
ADVERTISER CANCELLATION / RESCHEDULING POLICY
Advertising campaigns that the Advertiser cancels or reschedules within four (4) business days of scheduled launch date incur cancellation charges in the following order: (i) 3 business day notice = 25% of net amount cancelled; (ii) 2 business day notice = 50% of net amount cancelled; (iii) Inside 24 hours = 80% of net amount cancelled.
ADVERTISER REPRESENTATIONS AND WARRANTIES
Advertiser is solely responsible for any liability arising out of or relating to any Ad provided by Advertiser hereunder and any material to which users can link through such Ad (“Linked Content”). Advertiser represents and warrants that no part of the Ads or Linked Content will: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, consumer protection (including, without limitation, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the Federal Trade Commission’s Telemarketing Sales Rule, and the Federal Reserve Board’s Regulation E), false advertising or unfair competition; (c) be defamatory; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. Advertiser further represents and warrants that (a) it holds all intellectual property and other necessary rights, including the right to display trademarks and use copyrighted materials, and to permit the display of the Ads and the Linked Content; (b) the product or service that is being promoted through any campaign hereunder is not the subject of any ongoing investigation by any local, state or federal regulatory or quasi-regulatory authorities; (c) the terms of any offer presented in the Ad or any Linked Content shall be clearly and conspicuously disclosed to consumers in compliance with current federal and state laws, regulations, and guidelines (including, without limitation, Federal Trade Commission requirements and guidelines for all marketing offers; (d) it has proper, documented substantiation for any claims, testimonials, endorsements, and other promotional materials used to sell its products or services, including (as applicable) that such claims, testimonials, endorsements, and other promotional materials are truthful, factually accurate, substantiated by scientific evidence, non-deceptive, non-misleading, and/or represent the honest opinions, findings, beliefs and/or experiences of the endorser, and (e) it will fulfill any commitments made in its Ads.
Advertiser agrees to indemnify, defend and hold harmless Avocadough Toast, its parent, successors, subsidiaries, Publishers, and affiliates (“Affiliates”), and their respective directors, officers, agents and employees (the “Avocadough Toast Indemnified Parties”), for any and all claims, losses, costs, liabilities or expenses (including, without limitation, reasonable attorneys’ fees and expenses) made against Avocadough Toast by a third party or parties that were incurred or that arise from: (i) any breach of the representations and warranties or any other material term of this Agreement by the Advertiser, its agencies, or its affiliates; (ii) any claim arising or resulting from the sale or license of Advertiser’s goods or services as promoted in the Ads; (iii) any government or regulatory action, including, but not limited to, investigations, litigation, or other legal proceedings, related to such Advertisements or from the sale or license of Advertiser’s goods or services as promoted in the Advertisements, including all attorneys’ fees incurred by Avocadough Toast as a result of complying with such action; or (iv) any other act, omission or misrepresentation by Advertiser directly or indirectly related to this Agreement. Avocadough Toast shall have the option to participate in such defense through counsel of its own choosing. In the event this indemnity includes claims against the employees, agents, or subsidiaries of Avocadough Toast, those employees, agents, or subsidiaries shall be indemnified just as their principal would be. Avocadough Toast reserves the right to reject or remove any Ad or URL link embodied within an Ad at any time in the event Avocadough Toast determines in its sole reasonable discretion that such Ad or Linked Content does not meet Avocadough Toast’s standards or comply with this Agreement, or that such Ad or Linked Content is unlawful or inappropriate. Avocadough Toast also reserves the right to demand third party verification for any claims made in any Ad and to terminate this Agreement in the event that such verification is not promptly provided or is unsatisfactory, in Avocadough Toast’s sole discretion. Notwithstanding the foregoing provisions, Avocadough Toast has no obligation to monitor Ads or Linked Content for compliance with applicable laws or regulations and shall have not liability for any violation of same.
For the term of this Agreement, Advertiser hereby grants to Avocadough Toast and Avocadough Toast’s Affiliates, Publishers, and partners a non-exclusive, royalty-free, worldwide license to (a) use, distribute, display, perform, copy, transmit, promote, market and display all Ads delivered hereunder in accordance with the terms of this Agreement and (b) use, distribute, display, perform, copy, transmit, promote, and market all associated Advertiser or third party intellectual property in connection therewith. Title to and ownership of all intellectual property rights of all Ads and associated Advertiser or third party intellectual property shall remain with Advertiser or its third party licensors. In addition, Advertiser agrees that Avocadough Toast may, during the term of this Agreement and thereafter, include Advertiser’s name (including any trade name, trademark, service mark and logo) and any Ad provided hereunder on Avocadough Toast’s customer list and in its marketing materials and sales presentations.
DISCLAIMER OF WARRANTIES
Avocadough Toast PROVIDES ITS SITES AND THE SITES OF ITS AFFILIATES, PUBLISHERS, AND PARTNERS, AND ALL ITS SERVICES AND THE SERVICES OF ITS AFFILIATES AND PARTNERS, AS PERFORMED HEREUNDER, ON AN “AS IS,” “WHERE IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED DISPLAY OR DISTRIBUTION OF ANY AD. IN THE EVENT OF INTERRUPTION OF DISPLAY OR DISTRIBUTION OF ANY AD, Avocadough Toast’S SOLE OBLIGATION WILL BE TO RESTORE THE ADVERTISEMENT AS SOON AS COMMERCIALLY PRACTICABLE. Avocadough Toast DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, OR ANY OTHER WARRANTY REGARDING QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, OR PERFORMANCE. Avocadough Toast DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT RESPONSES TO ADS INTO SALES. Avocadough Toast IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
LIMITATION ON DAMAGES
IN NO EVENT WILL Avocadough Toast BE LIABLE TO ADVERTISER FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IRRESPECTIVE OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER Avocadough Toast HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. UNDER NO CIRCUMSTANCES SHALL Avocadough Toast BE LIABLE TO ADVERTISER OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED HEREUNDER. IN LIEU OF REFUND, Avocadough Toast SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A COMMERCIALLY REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
Advertiser may not assign this Agreement, in whole or in part, without Avocadough Toast’s written consent. Any attempt to assign this Agreement without such consent will be null and void.
GOVERNING LAW AND DISPUTES
The validity of this Agreement, its interpretation and any disputes arising from, or relating in any way to, this Agreement or the relationship of the parties, shall be governed by the law of the State of New York without regard to conflicts of law principles. All disputes controversies or claims, regardless of their form or nature, including, without limitation, any claim arising out of, in connection with, or in relation to the formation, interpretation, performance or breach of this Agreement, possessed by the Advertiser shall be resolved exclusively by arbitration conducted in the State of New York before a single arbitrator, in accordance with this provision and the American Arbitration Association’s (“AAA”) Rules for the Resolution of Commercial Disputes. The parties agree, notwithstanding the AAA rules regarding discovery, that each party shall have the right to propound reasonable requests for discovery, and shall have the right to conduct up to three (3) depositions. The arbitrator shall have the power on the motion of a party for good cause to either limit discovery or permit additional depositions. Judgment upon any award rendered by the arbitrator may be entered by any state or Federal court located in the State of New York. Any filing or administrative fee shall be initially advanced by the party commencing the arbitration subject to reallocation by the arbitrator. The prevailing party in such arbitration, as determined by the arbitrator, and in any enforcement or other court proceedings, shall be entitled to the extent permitted by law, to reimbursement by the other party for all of the prevailing party’s costs, expenses and attorneys’ fees.
Notwithstanding anything contained in this provision to the contrary, the parties agree that any claim possessed by Avocadough Toast is not subject to arbitration unless Avocadough Toast, in its sole and unilateral decision, so elects and that Avocadough Toast is fully entitled to alternatively bring an action in any state or Federal court located the State of New York. In the event that Avocadough Toast decides to initiate an action in state or Federal court, the Advertiser hereby consents to jurisdiction and venue in New York, and expressly waives all rights to challenge jurisdiction and venue, including any forum non conveniens argument, as well as all challenges to the enforceability of this provision based on the lack of mutuality of the obligation to arbitrate.
Advertiser agrees and acknowledges that it is not permitted to use or incorporate Avocadough Toast’s trade names, trademarks, service marks, logos, designs, artwork, similar symbols and devices (hereinafter, “Avocadough Toast Marks”) in connection with its Advertisements or for any other reason without prior express written consent.
TERM & TERMINATION
This Agreement shall be in effect from the date of execution and shall be in effect until 60 days from publications of advertisement unless sooner terminated as provided in this Agreement. Except as otherwise provided, the representations, warranties, and indemnification obligations contained within this Agreement shall survive the termination of the Agreement. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled.
If any provision of this Agreement should be determined to be illegal, invalid, or otherwise unenforceable by a court of competent jurisdiction or be invalid or invalidated or unenforceable by reason of any law or statute, then to the extent invalid or unenforceable, it shall be limited, construed or severed and deleted therefrom, and the remaining portions of this Agreement shall survive, remain in full force and effect, and continue to be binding and shall not be affected and shall be interpreted to give effect to the intention of the parties insofar as that is possible.
RELATIONSHIP OF THE PARTIES
Each party is an independent contractor and not a partner, joint venturer or employee of the other. Neither party shall have the right to bind the other or to incur any obligation on the other’s behalf.
AGREEMENT BINDS SUCCESSORS
This Agreement shall inure to the benefit of and be binding upon the respective heirs, successors, personal representatives, executors and assigns of each party hereto.
This Agreement and any and all exhibits, appendices, and attachments are the complete and exclusive agreement between the parties with the respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. The terms and conditions of this Agreement will prevail over any contrary or inconsistent terms in any purchase order. This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties. No waiver of any provision of the Agreement, or any default or breach in the performance of this Agreement, shall be deemed a waiver of any other provision, or of any subsequent default of breach, nor shall any waiver constitute a continuing waiver.