ADVERTISER TERMS AND CONDITIONS
The following terms and conditions (“Advertiser Terms and Conditions”) govern the placement and delivery of advertising (“Ad”) as set forth in the Insertion Order submitted by the Advertiser. The Advertiser Terms and Conditions and any associated Insertion Order or Insertion Orders are collectively referred to herein as the “Advertiser Agreement”.
This Agreement is entered by and between BMI and the company named as advertiser in the Insertion Order (“Advertiser”) and/or the agency listed in the Insertion Order for such Advertiser (“Agency”), if any.
Invoices will be sent by BMI at such times as provided in the Insertion Order, or otherwise from time to time according to BMI’s normal billing procedures. Invoices will be sent to the billing address of the Advertiser or Agency, as applicable and as set forth in the Insertion Order. Failure by BMI for whatever reason to send a timely invoice will not affect Advertiser’s obligation to pay for any Ads placed in accordance with the Insertion Order.
2) Terms of Payment
Payment is due within thirty (30) calendar days following the date of invoice, unless BMI expressly agrees otherwise in the Insertion Order. Payment not made within five (5) business days of the due date shall accrue interest at the rate of 1.5% per month, or if less, the highest rate permitted under law. All costs of collection, including reasonable legal fees and expenses, incurred by BMI shall be borne by the Advertiser. The Advertiser shall pay all sales, use, excise and other taxes which may be levied upon either party in connection with this Advertiser Agreement.
Should the advertiser have any other outstanding and overdue amounts owed to BMI for any other service or products, amounts paid for an advertisement may be applied to such other debts, at the discretion of BMI.
3) Payment Liability
In the case of any Agency listed on the Insertion Order, BMI will hold Agency and Advertiser jointly and severally liable for payments. Should sums not have been cleared to Agency, Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis. Upon BMI’s request, Agency will make available written confirmation of the relationship between Agency and Advertiser. Such confirmation will include, for example, Advertiser’s acknowledgement that Agency is its agent and is authorized to act on its behalf in connection with the Insertion Order and confirm these Advertiser Terms and Conditions.
4) Delivery of Advertising Materials
The Advertiser will, at its sole cost and expense, create and deliver all advertising materials required for any Ad (“Advertising Materials”) according to technical specifications provided by BMI. If the delivered Advertising Materials do not conform to BMI’s technical specifications or do not arrive timely enough to deliver the Ad on any agreed dates according to the Insertion Order, then BMI, at its sole discretion, may: (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 Advertising Materials are corrected, or (ii) the late-arriving Advertising Materials are received.
5) Advertiser and Agency Representations and Warranties
The Advertiser, and any Agency listed on the Insertion Order on its behalf, is responsible for any liability arising out of or relating to any Ad and Advertising Materials provided by the Advertiser or Agency hereunder and any material to which users can link through such Ad (“Linked Content”). The Advertiser represents and warrants that no part of the Ad, Advertising Materials 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, false advertising or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses or other similar harmful or deleterious programming routines.
6) DISCLAIMER OF WARRANTIES
BMI PROVIDES ITS PUBLICATIONS, WEBSITES, AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. IN THE EVENT OF ANY ERROR OR MALFUNCTION IN THE DISPLAY OR DISTRIBUTION OF ANY AD, BMI’S SOLE OBLIGATION WILL BE TO REPRINT OR REDISPLAY THE AD AS SOON AS REASONABLY PRACTICABLE. BMI DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE AND EXPRESSLY EXCLUDES ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW.
7) LIMITATIONS OF LIABILITY
IN NO EVENT SHALL BMI BE LIABLE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS ADVERTISER AGREEMENT INCLUDING ANY INSERTION ORDER (EVEN IF BMI WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING). UNDER NO CIRCUMSTANCES SHALL BMI BE LIABLE TO THE ADVERTISER, AGENCY OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY BMI UNDER THE RELEVANT INSERTION ORDER IN RELATION TO WHICH SUCH LIABILITY MAY ARISE. IN LIEU OF REFUND, BMI SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
Each of the Advertiser and any Agency agrees to indemnify, defend, and hold harmless BMI and its affiliates, directors, officers, agents and representatives for and from any claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of (a) the acts or omissions or breach of this Advertiser Agreement by the Advertiser or such Agency as applicable (including Advertiser’s Representations and Warranties set forth above), (b) the content or subject matter of any Ad or Advertising Materials, or (c) any violation of any applicable laws, rules, regulations, industry guidelines or policies, including without limitation relating to any end user or other data that it may collect or have collected in relation to the Ads placed according to the Insertion Order.
9) Online Advertising Reporting
BMI will make reporting available at least as often as weekly, at the request of the advertising company or agency. Once Media Company has provided the online or electronic report, it agrees that Agency and Advertiser are entitled to reasonably rely on it.
This Advertiser Agreement, including these Advertiser Terms and Conditions and associated Insertion Order(s), sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a written addendum signed by both parties may change this. This Advertiser Agreement will be governed and construed in accordance with the laws of the state of Ohio. The Advertiser and BMI agree to submit to the exclusive jurisdiction of the courts of Cuyahoga County, OH. If any provision of this Advertiser Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.