The following terms and conditions govern all entities that place advertising (“Advertiser”), either directly or through an agent (“Agency”), in websites, email campaigns (“Email(s)”), social media channels, digital magazine publications (“Digital Editions”), any other applications (collectively, together with Digital Editions, the “Apps”), and any other services published and/or owned, licensed or operated by or on behalf of MomsLA, LLC (“Publisher”) (collectively, together with Magazines, Digital Editions, Websites, Emails, Podcasts, and Apps, the “Publisher Service”), and through Publisher on any third party Websites, Apps and/or any other platform or service (including, but not limited to, Facebook, YouTube, etc.) (collectively, the “Third Party Services”).
A. Payment Payment in full is to be made by credit card or check payable to MomsLA, LLC and mailed to 3930 Keeshen Drive, Los Angeles, CA 90066. Advertising fees are non-refundable once paid. If changes must be made, fees may be transferred to another digital package to be agreed upon by both parties.
B. Labeling of Advertisements Advertisements that simulate or resemble, or might not be distinguishable from, editorial content must be clearly identified and labeled “ADVERTISEMENT” or any other label as determined by Publisher in a clear and prominent manner, and Publisher may, in its discretion, so label such material and/or otherwise distinguish the style and/or presentation of such material.
C. Errors in or Omissions of Advertisements In the event of Publisher’s errors in or omissions of any advertisement(s), Publisher’s liability shall be limited to a credit of the amount paid attributable to the space of the error/omission (in no event shall such credit exceed the total amount paid to Publisher for such advertisement), and Publisher shall have no liability unless the error/omission is brought to the Publisher’s attention no later than 60 days after the advertisement is first Published. However, if a copy of the advertisement was provided or reviewed by Advertiser, Publisher shall have no liability. In no event will Publisher have any liability for errors or omissions caused by force majeure or errors in key numbers. In the event of a suspension of the Service due to computer, software, or network malfunction, congestion, repair, strike, accidents, fire, flood, storms, terrorist attacks, acts of war, pandemic, epidemic, or risk of disease, or any other cause or contingencies or force majeure beyond the reasonable control of Publisher, it is agreed that such suspension shall not invalidate any advertising agreement but a) will give Publisher the option to cancel any advertising agreement, or if Publisher does not do so, b) upon resumption of the Service, the agreement shall be continued and Publisher will have no liability for any errors or omissions or any damages or missed impressions caused by such suspension. IN NO EVENT WILL PUBLISHER HAVE ANY LIABILITY FOR ANY ADVERTISING CREATIVE OR PRINTING COSTS, ADMINISTRATIVE COSTS, AND/OR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA AND/OR INFORMATION AND THE LIKE.
D. Warranties; Indemnification Advertiser and its Agency, if there be one, each represent and warrant that: (i) it does and shall comply with applicable federal, state and local laws, rules and regulation, including, to the extent applicable, the California Consumer Privacy Act of 2018 and its implementing regulations (“CCPA”) (together, “Applicable Laws”); (ii) Advertiser’s and third parties’ websites, mobile sites, applications, e- mail campaigns and any other services that are associated with advertising purchased by Advertiser or Agency contain all disclosures required by Applicable Laws, including, but not limited to, a conspicuous link to a clear, accurate, and up-to-date Privacy Policy that: (a) discloses (1) the usage of third party technology; (2) the participation of third party service providers; and (3) the data collection and usage by such service providers and from such third party technology; and (b) complies with all Applicable Laws; (iii) it will not merge information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a natural person, device, or household (“Personal Information”) collected, obtained, or derived, from the Services with non-Personal Information without providing the end-user robust notice of that merger and obtaining the end-user’s opt-in consent; (iv) if providing Personal Information to Publisher, it has all rights and permissions necessary for Publisher to use and disclose such Personal Information for the purposes described in Publisher’s Privacy Policy, as may be updated from time to time, and these terms and conditions; (v) it will not send any Personal Information to Publisher if such transfer would violate the rights of any third party or otherwise be contrary to Applicable Law; (vi) as reasonably requested, it will provide cooperation and assistance to Publisher in relation to regulatory inquiries and third party rights requests; (vii) any advertising or other material (including, but not limited to, product samples) submitted by Advertiser or Agency, and/or created by Publisher on behalf of Advertiser or Agency, and any material to which such advertisement or other material links or refers, shall comply with Applicable Laws (including, but not limited to, providing necessary disclosures) and shall not violate the rights (including, but not limited to, any copyright, patent, trademark, service mark, privacy and publicity rights) of, and is not harmful to, any person, corporation or other entity; and (viii) any advertising or other materials submitted by Advertiser shall be accurate and not contain any defamatory materials.
E. Indemnification As part of the consideration to induce Publisher to Publish an advertisement, Advertiser and its Agency, if there be one, each agrees jointly and severally to defend, indemnify and hold harmless Publisher, its parent, subsidiaries and affiliates, and each of their officers, directors, members, employees, contractors, licensees, agents, representatives, successors and assigns against any and all liability, loss, damage, and expense of any nature, including attorneys’ fees (collectively, “Losses”) arising out of any actual or potential claims for libel, invasion of privacy, harm, copyright, patent, or trademark infringement, violation of publicity rights and/or any other actual or potential claims or suits that may arise out of (a) the copying, printing, publishing, displaying, performing, distributing or transmitting of such advertisement; (b) any violation of the CAN- SPAM Act, the TCPA Act, CCPA or other laws relating to Advertiser’s advertisements, including, but not limited to, commercial messages e-mailed or sent via text message/SMS or pre-recorded voice message on Advertiser’s behalf by Publisher; (c) the loss, theft, use, or misuse of any credit/debit card or other payment, financial, or Personal Information; (d) the products and/or services promoted, sold, presented and/or contained in Advertiser’s advertisements; (e) audience segments used for audience targeting in connection with Advertiser’s advertisements; (f) a breach or alleged breach of its covenants, warranties, representations, and obligations under these advertising rate card contract terms and conditions; and/or (g) any violation of law by Advertiser and/or its Agency. If the Publisher participated in the creation of an advertisement, the Publisher will indemnify Advertiser in connection with potential claims relating thereto only to the extent it has agreed to do so in writing.
F. Republication of Advertisements Advertiser and Agency agree that any submitted advertisements Published in a Service, may, at Publisher’s option, be republished, re-performed, retransmitted, archived or otherwise reused by Publisher or its agents in any form in whole or in part in all media now in existence or hereafter developed, whether or not combined with material of others. As between Publisher and Advertiser/Agency, the copyright in any advertisement and/or content created by Publisher is owned by Publisher and may not be otherwise used by Advertiser or third parties without Publisher’s prior written consent.
G. Choice of Law and Forum All issues relating to advertising will be governed by the laws of the State of California applicable to contracts to be performed entirely therein. Any action brought by Advertiser against Publisher relating to advertising must be brought in the state or federal courts in Los Angeles, California. The parties hereby consent to the jurisdiction of the state or federal courts in Los Angeles, California in connection with actions relating to advertising, including, but not limited to, actions to collect amounts due for advertising.
H. Disclaimer PUBLISHER DISCLAIMS ALL WARRANTIES AND/OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES FOR NONINFRINGEMENT, ACCURACY, AVAILABILITY, UPTIME, MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE IN CONNECTION WITH THE DISPLAY, PERFORMANCE AND TRANSMISSION OF ADVERTISEMENTS ON PUBLISHER’S SERVICES. Without limiting the generality of the foregoing, Publisher disclaims all warranties and guarantees with respect to the Services, including, without limitation, warranties and/or guarantees relating to: (a) the positioning or placement of advertisements on the Services, (b) advertising results on the Services; (c) the accuracy of audience data, including, but not limited to, audience demographic data, audience size/reach data, etc. with respect to the Services; and (d) information and data security.
I. Entire Agreement The foregoing terms and conditions (and the Additional Terms set forth below) shall govern the relationship between Publisher and Advertiser and/or Agency. Publisher has not made any representations to Advertiser or Agency that are not contained herein. Failure by Publisher to enforce any of these provisions shall not be considered a waiver of such provision. Neither party may assign this agreement, or the rights or obligations hereunder, without the prior written consent of the other, except that Publisher may assign this agreement to an affiliate or in connection with a merger, sale, or other transfer of the business to which it relates; any purported assignment in violation of the foregoing shall be null and void
J. Impression Guarantees and Calculations Publisher makes no guarantee or representation as to the quantity and/or quality of visits, impressions, circulation, or other usage of Third Party Services or Publisher’s Websites, Apps, Podcasts, or Emails or of the advertisement, or as to the use of any particular tracking or information-gathering devices, unless Publisher expressly agrees otherwise in writing. Advertiser and Agency acknowledge and agree that advertisements and ad impressions Published on Third Party Services and Publisher’s Websites, Apps, Podcasts, and/or Emails may reach end users located in and/or outside the United States. In addition, all impressions and/or other measurements of advertisements for Publisher’s Websites, Apps, Podcasts, and Emails shall be based solely on Publisher’s calculations for its Websites, Apps, Podcasts, and Emails. All impressions and/or other measurements of advertisements for a Third Party Service shall, at Publisher’s sole discretion, either be based on Publisher’s calculations or such Third Party Services’ calculations.
K. Additional Disclaimer In addition to the disclaimers set forth in Section R above, and without limiting the generality of the foregoing disclaimers, Publisher disclaims all warranties and guarantees with respect to Third Party Services and its Websites, Apps, Podcasts, and Emails, including, without limitation, warranties and/or guarantees relating to: (a) the availability, uptime and delivery of any impressions and/or advertisements on any Third Party Services and/or on any of Publisher’s Websites, Apps, Podcasts, and/or Emails; (b) the quantity, quality or frequency of clicks or click-through rates of advertisements on the Third Party Services, Websites, Apps, Podcasts, and/or Emails; (c) the viewability of any advertisements on the Third Party Services, Websites, Apps, Podcasts, and/or Emails; and (d) the prevention of end users’ use or engagement of ad blocking technology on the Third Party Services, Websites, Apps, Podcasts, and/or Emails. Advertiser acknowledges that third parties other than Publisher may generate automated, fraudulent or otherwise invalid/improper impressions, conversions, inquiries, clicks or other actions on Advertiser’s advertisements displayed on Third Party Services and Publisher’s Websites, Apps, Podcasts, or Emails. As between Advertiser and Publisher, Advertiser accepts the risk of any such improper actions. Advertiser’s exclusive remedy for such suspected improper actions is for Advertiser to request a refund relating to its impacted advertisements in the form of advertising credits on the applicable Third Party Services, Website, App, Podcasts, or Emails within thirty (30) days from the end of the calendar month in which such advertisement is initially displayed on the applicable Third Party Services, Website, App, Podcasts, or Emails. Any advertising credit refunds in connection with the Advertiser’s aforementioned requests are within the sole discretion of Publisher.
L. CAN-SPAM and TCPA Advertiser and Agency understand that advertisements and/or other commercial messages sent on its behalf by Publisher via Email, text messages/SMS or pre- recorded voice message may be governed by federal, state and local laws, rules and regulations, including without limitation the Controlling the Assault of Non- Solicited Pornography and Marketing Act of 2003 and any acts related thereto, and including the interpretations thereof by the FTC or other governmental authorities (collectively, the “CAN-SPAM Act”), the Telephone Consumer Protection Act of 1991 and any acts related thereto, and including the interpretations thereof by the FCC or other governmental authorities (collectively, the “TCPA Act”), state “Do Not E-mail” registries and state laws, rules and regulations concerning text messages/SMS and pre-recorded voice messages. Advertiser agrees to comply with all such applicable laws, rules and regulations. Without limiting the generality of the foregoing, Advertiser shall fulfill all obligations of a “Sender” as specified in the CAN-SPAM Act, unless Publisher agrees in writing to be designated as the “Sender”, and with all obligations of a “Maker” or “Sender” of a call or text message under the TCPA Act, unless Publisher agrees in writing to be designated as the “Maker” or “Sender”. In either case, Advertiser agrees to comply with Publisher’s policies intended to comply with the CAN-SPAM Act and TCPA Act.
M. Data Collection To the extent Advertiser and/or Agency collects or obtains data from any Service, whether collected or received via an advertising unit, widget, pixel tag, cookie, clear gif, HTML, web beacon, script or other data collection process, including without limitation “clickstream” or “traffic pattern” data, or data that otherwise relates to usage of the Service, user behavior, and/or analytics, Advertiser and/or Agency is subject to the then-current version of Publisher’s Third Party Data Collection Policy, which is incorporated herein by reference (a copy of which is available upon request). In addition, to the extent Advertiser and/or Agency provides any such data, or any names, postal addresses, email addresses, telephone numbers or other Personal Information to Publisher for any purpose, Advertiser and/or Agency represents and warrants that it has all rights, consents and permission necessary to transfer such data, and for Publisher to use such data, for the purposes contemplated by the parties and these terms and conditions.
