Advertising and Editorial Content Terms and Conditions
Last updated: February 22, 2021
These Terms and Conditions (these “Terms“) shall apply to all Customer Content submitted to Apeiron Media Inc Limited, AMI Publishing Limited or their affiliates (collectively, the “Publisher“). Customer Content submitted to the Publisher for publication shall not be deemed to have been accepted unless and until either confirmed in writing by the Publisher or the first Customer Content appears in the relevant Publication. By submitting Customer Content to the Publisher, the Customer (as defined below) agrees to be bound by these Terms, even if it is acting as agent or buyer for a third party. For the avoidance of doubt, the Customer’s standard terms and conditions of purchase or any other standard terms and conditions shall not apply.
1. DEFINITIONS
In these Terms, the following definitions shall apply:
“Booking” means (i) with respect to advertisements, the acceptance of a Customer Order by the Publisher by confirmation email; or (ii) with respect to editorial content, the receipt by the Publisher of the Customer’s list of suppliers and invite letter, and “Booked” means a Booking has been completed.
“Customer Content” means an advertisement or editorial content published, reproduced or inserted in or on any Magazine or Digital Format pursuant to a Customer Order;
“Customer Order” means any order or request for Customer Content submitted to the Publisher for the publication, reproduction or insertion of Material in or on any Publication;
“Digital Format” means any internet site, application or other digital format operated, owned or controlled by the Publisher or any third party partner of the Publisher;
“Customer” means the person or entity who submits a Customer Order, whether such person or entity is the seller, distributor or provider of the relevant product or service, an advertising agency, media buyer, a recruiter representing a prospective employer, or otherwise;
“Magazine” means any magazine or other print publication published by or on behalf of the Publisher;
“Material” means any advertising material/copy, artwork, photographs, editorial content or other material provided or to be provided by the Customer or prepared by or on behalf of the Publisher in connection with the Customer Order; and
“Publication” means any Magazine or Digital Format.
2. PUBLICATION OF CUSTOMER CONTENT
2.1 Without limiting clause 4.1, the Customer grants the Publisher an irrevocable, world-wide, royalty-free license to reproduce, publish and republish (a) the Customer Content within the relevant Publication (irrespective of the medium or platform in or on which it is published) in accordance with the Customer Order, and (b) the Customer’s logo and image(s) from the Customer Content on the Publisher’s website. The Customer acknowledges and agrees that its approval of the Customer Content to be published in a Publication constitutes consent to having its logo and images from such Customer Content published on the Publisher’s website.
2.2 The Publisher may reject, refuse, omit, postpone, cancel, or require changes to the whole or part of any Material, Customer Order or Customer Content submitted for insertion into a Publication at any time, whether or not it has accepted the Customer Order, including the dates for publication and positioning of the Customer Content, or to accept the Customer Order subject to additional conditions which will be notified by the Publisher to the Customer.
2.3 Save to the extent caused by its gross negligence, the Publisher shall not be responsible for any error or omission in the insertion of any Customer Content, or for any damage or loss of any copy, electronic files, data, drawings or other materials supplied for the purpose of Customer Content or any shrinkage or colour alteration that may occur during the normal course of production.
2.4 It is the Customer’s responsibility to ensure that all Customer Content is correct, accurate and not misleading. The Publisher accepts no responsibility for any errors in Customer Content including, without limitation, any errors which arise as a result of any changes or alterations undertaken by the Publisher at the Customer’s request. In respect of any Customer Content in a Magazine, in the event of an error in published Customer Content as a result of a material typographical error caused by the Publisher, the Publisher agrees to re-run the Customer Content free of charge in the next available edition of such Magazine.
2.5 The Customer acknowledges and agrees that Customer Content published on any Digital Format may be available on the Publisher’s network of partner Digital Formats. The Publisher reserves the right to add or remove a partner Digital Format from its partner network, at its sole discretion. The Publisher hereby disclaims all responsibility and liability for the services, software and/or results of or provided by any of the Digital Formats comprising the Publisher’s partner network.
2.6 All rates, added value and Customer Content positioning as set out in the Customer Order or otherwise agreed to by the parties in writing are valid for the confirmed Booking only. For the avoidance of doubt, the content, layout and format of any Publication will be subject to variation at the Publisher’s sole discretion.
3. DELIVERY OF MATERIALS
3.1 All Materials must adhere to the Publisher’s technical specifications, [found here / as provided by the Publisher to the Customer].
3.2 All Materials must be delivered to the Publisher within the applicable timelines, as set out in the Customer Order. Failure by the Customer to deliver Material in accordance with the applicable timeline such that the Customer Content cannot be published does not excuse the Customer from paying the full fee per Customer Content Booked.
3.3 The Publisher may require that an interview be conducted with one or more representatives of the Customer for purposes of any editorial content to be prepared by or on behalf of the Publisher as part of the Customer Content. If an interview is not made available to the Publisher by the Customer prior to applicable timelines, the Publisher may publish Customer Content based on public domain information.
4. RIGHTS
4.1 The Publisher owns the copyright in all Customer Content written or designed by it or on its behalf.
4.2 The Customer grants to the Publisher the right to use such of the Customer’s names, trademarks and/or logos as the Publisher may consider necessary for the purposes of publishing the Customer Content.
5. WARRANTIES
5.1 The Customer warrants and represents to the Publisher that:
5.1.1 it has full capacity and authority to enter into a binding contract with the Publisher on the provisions of these Terms;
5.1.2 all information and Material supplied to the Publisher is true, accurate and not misleading, and nothing contained in it is liable to bring the Publisher or any Publication into disrepute;
5.1.3 the Material is not obscene, defamatory, fraudulent, misleading or libelous, and shall not give cause, whether directly or indirectly, for any action to be brought against the Publisher for libel, fraud or publication of a false or misleading statement;
5.1.4 the Material will not infringe the intellectual property rights or any other rights (including without limitation any right of privacy or confidence) whatsoever of any third party or unfairly prejudice the legitimate interest of any third party by implication or otherwise;
5.1.5 the Material complies with all applicable legislation, laws, regulations and codes of practice (or similar);
5.1.6 it shall not represent to any third party that the Publisher in any way endorses the Customer, the Customer Content and/or the Customer’s products or services;
5.1.7 it shall ensure that all advertisements submitted for publication is clearly recognizable as advertising and not designed to resemble editorial content;
5.1.8 where Customer Content includes a competition, prize draw or similar promotion, the Material complies with, and the competition, prize draw or promotion shall be conducted by the Customer, in accordance with all applicable laws and regulations, and the Customer shall be responsible for the provision of all prizes;
5.1.9 the Material shall not indicate an intention to discriminate on grounds of sex, race, religion or belief, disability, ethnic origin, gender, age or sexual orientation;
5.1.10 the Material shall not cause disruption to any computer, computer system, network or any Digital Format, and shall be free from viruses or malicious code;
5.1.11 the Material shall not be prejudicial or damaging to the reputation of the Publisher or the Publications;
5.1.12 it shall provide the Publisher with all necessary Material by the date notified by the Publisher to the Customer, such date being of the essence. If the Customer fails to provide such Material by such date, the Customer acknowledges and agrees that the Publisher may not be able to fulfil its obligations under the Customer Order or these Terms and accepts that the Publisher will not be liable for any such failure to any extent or at all;
5.1.13 it shall not without the prior permission of the Publisher embed any tracking device, cookies, beacon, floodlight or other technological device in or as part of Customer Content published on any Digital Format that enables the Customer to track or analyze the online behaviour of any user to which such Customer Content is served; and
5.1.14 it has all necessary rights, licences and consents (including where necessary regulatory consents and consents from persons or entities cited or quoted in the Material) needed to permit the Publisher to use, display, reproduce, insert or publish the Material pursuant to clause 2.1.
5.2 The Publisher warrants to the Customer that it shall use reasonable care and skill in carrying out its obligations under these Terms. Except as otherwise expressly provided herein, all conditions, warranties, terms, prior representations, and undertakings express or implied, statutory or otherwise in respect of the services provided hereunder by the Publisher are to the fullest extent permitted by law expressly excluded.
5.3 Without limiting clause 5.2, the Customer agrees and acknowledges that the Publisher makes no representation or warranty:
5.3.1 that any publication of any Customer Content will be confined to persons resident in any particular legal jurisdiction(s);
5.3.2 as to the exact number of page impressions that will be delivered on specific dates during an online campaign;
5.3.3 as to the quality of reproduction of Customer Content in any of the Publications;
5.3.4 the exact layout and format of any Publications which shall be in the discretion of the Publisher;
5.3.5 as to the availability of any Digital Format, and in each case the Publisher accepts no liability to the Customer in respect of the same.
6. LIABILITY AND INDEMNITY
6.1 Nothing in this clause 6 shall be construed as excluding or limiting the Publisher’s liability for death or personal injury caused by its gross negligence or fraud.
6.2 SUBJECT TO CLAUSE 6.1, THE PUBLISHER AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR SERVICE PROVIDERS SHALL NOT BE LIABLE TO THE CUSTOMER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL LOSS OR ANY LOSS OF MATERIAL, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF ORDERS, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF DATA OR LOSS OF ANTICIPATED SAVINGS.
6.3 SUBJECT TO CLAUSE 6.1, THE LIABILITY OF THE PUBLISHER IN RESPECT OF ANY AND ALL OTHER CLAIMS (WHETHER IN CONTRACT OR TORT) ARISING OUT OF OR IN CONNECTION WITH CUSTOMER CONTENT OR A CUSTOMER ORDER SHALL NOT EXCEED THE AMOUNT THE CUSTOMER HAS PAID THE PUBLISHER IN CONNECTION WITH THAT CUSTOMER CONTENT OR CUSTOMER ORDER.
6.4 The Customer agrees to, on demand, fully indemnify and keep fully indemnified the Publisher, its directors, agents and employees against any and all losses, liabilities, costs, claims, damages, demands, expenses and fees (including but without limitation legal and other professional fees) suffered or incurred by the Publisher arising out of or in connection with:
6.4.1 any breach of these Terms by the Customer;
6.4.2 any actual or potential infringement of a third party’s intellectual property rights by Customer Content, other than editorial content prepared by or on behalf of the Publisher; or
6.4.3 the publication by the Publisher of Customer Content in accordance with an Customer Order.
7. PAYMENT
7.1 The Customer shall pay fees to the Publisher for Customer Content submitted to or prepared by or on behalf of the Publisher (and which are accepted by the Publisher) in accordance with this clause 7.
7.2 Unless otherwise agreed by the Publisher in writing, the Publisher shall invoice the Customer for all amounts as they become due, which shall be upon Booking.
7.3 The Customer shall pay all invoices within 30 days of the date of the invoice.
7.4 Without prejudice to any other rights or remedies that the Publisher may have, if the Customer fails to pay the Publisher on or before the due date for payment, the Publisher may:
7.4.1 claim interest on the amount due at a rate of [12]% per annum; and
7.4.2 remove any and all Customer Content the Publisher may have in any Publications until payment has been made in full.
7.5 The Customer may terminate any Customer Content in accordance with clause 8.1. The Customer has no other rights of cancellation. In the event that the Customer cancels Customer Content other than in accordance with clause 8.1, the Customer acknowledges and agrees that it shall remain fully liable to pay to the Publisher for the Customer Content.
8. CANCELLATION
8.1 Once a Customer Order has been Booked, the Customer may only cancel the Customer Content, the Materials or the Customer Order within 24 hours of Booking without cost. Cancellations requested between 24 and 72 hours after Booking will be charged at 50% of the agreed rate. The Customer will be liable for all sums due to the Publisher pursuant to clause 7.5 where the Customer requests a cancellation more than 72 hours after Booking. All cancellation requests must be provided in writing.
8.2 Without prejudice to any other rights or remedies which the Publisher may have, the Publisher may terminate a Customer Order (without any liability) immediately on giving notice to the Customer in the event that:
8.2.1 the Customer fails to pay any amount due to the Publisher on or by the due date for payment;
8.2.2 the Customer commits a material breach of these Terms;
8.2.3 the Customer repeatedly breaches any of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms; or
8.2.4 the Customer enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of a solvent amalgamation or reconstruction); becomes insolvent; ceases or threatens to cease to carry on business; compounds or makes any voluntary arrangement with its creditors; becomes subject to an administration order; is unable to pay its debts as they fall due; has an encumbrancer take possession of, or a receiver or administrative receiver appointed over, all or any part of its assets; takes or suffers any similar action due to debt; or if the equivalent of any of the above events under the law of any jurisdiction occurs in relation to the Customer.
9. GENERAL
9.1 The Publisher reserves the right to place the word “Advertisement” in any Customer Content containing Material which the Publisher considers, in its sole opinion, to too closely resemble editorial content.
9.2 With the exception of the Customer’s payment obligations, neither the Publisher nor the Customer shall be liable to each other for any failure to comply with the provisions of these Terms as a result of any event beyond the reasonable control of either of them.
9.3 Any notice or correspondence required to be given under these Terms may be delivered personally or sent by prepaid registered mail or by email to the other party at the addresses set out in the Customer Order, or such other address as may be notified in accordance to the other party from time to time. Any notice so sent shall be deemed to have been duly given upon delivery at the address of the relevant party.
9.4 If any provision of these Terms is held for any reason to be ineffective or unenforceable (in whole or in part) this shall not affect the validity or enforceability of the Terms set out herein, which shall remain in full force and effect.
9.5 A waiver by the Publisher of any breach if these Terms will not be treated as a waiver of any subsequent breach of the same or any other provision by the Customer.
9.6 No third party shall have any rights to enforce these Terms against the Publisher.
9.7 These Terms and the Customer Order shall constitute the entire agreement between the parties with regard to its subject matter and shall supersede all prior understandings, commitments and undertakings that either party may have given.
9.8 The contract between the Customer and the Publisher is personal to the Customer. The Customer may not assign, sub-license, sub-contract, transfer or charge the contract or any part of it without the prior written consent of the Publisher.
9.9 These Terms will be governed by and construed in accordance with the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision, principle or rule (whether of the laws of the Province of Nova Scotia or any other jurisdiction) and notwithstanding the Customer’s domicile, residence or physical location. Any action or proceeding arising out of or relating to these Terms will be instituted in the courts of the Province of Nova Scotia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding.
9.10 The Publisher may from time to time modify these Terms by publishing any changes online. The Customer should check online before placing a Customer Order since by placing a Customer Order, the Customer agrees to be bound by any updates to such Terms.
9.11 No variation or addition to these Terms without the prior written consent of the Publisher shall be effective unless agreed to in writing by the Publisher and any additional terms the Customer may seek to impose shall be void and unenforceable.
9.12 The parties shall, in the performance of their respective obligations under these Terms, comply at all times with all relevant laws, statutes and regulations applicable to their activities, including in particular all applicable laws and regulations concerning the prohibition of bribery, corruption, improper gifts and payments, at all times.