This Publisher Agreement is entered into by and between the Publisher and PINGCALL, LLC. (“PINGCALL”), with its principal place of business at 31 W 34th Street New York NY 10001. These Terms and Conditions shall apply to all Advertisements submitted to the Publisher. An Advertisement 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 campaign commences, and the first Advertisement appears in the relevant Publication. By submitting an Advertisement to the Publisher, the Customer agrees to be bound by these Terms and Conditions and the Rate Card, even if it is acting as agent or buyer for the actual advertiser.
- PINGCALL plans advertising campaigns and buys advertising media on behalf of its clients
- Publisher sells certain advertising products and services that it is willing to make available in support of PINGCALL’s client’s advertising campaigns.
- Publisher desires to sell and PINGCALL desires to purchase certain of Publisher’s products and services in accordance with the terms set forth in this agreement
NOW THEREFORE in consideration of the mutual covenants set forth herein, the parties agree as follows
In these terms and conditions, the following definitions shall apply:
“Actual Advertisement Placements” means the actual number of placements of an Advertisement in any Publication in any 12-month period preceding any anniversary of the Publication Date;
“Advertisement” means an advertisement published, reproduced, or inserted in or on any Publication, pursuant to an Insertion Order;
“Insertion Order” means any order for an Advertisement submitted to the Publisher for the publication, reproduction or insertion 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 comprising its partner network;
“Expected Advertisement Placements” means the expected number of placements of an Advertisement in any Publication used to calculate the rates (prior to the Publication Date) the Customer will pay the Publisher;
“Customer” means the person or legal entity who submits an Insertion Order which is accepted by the Publisher, whether such person or legal entity is the advertiser of the relevant product or service, the Advertiser’s advertising agency, media buyer, or a recruiter representing a prospective employer;
“E-Mail Campaign” means any e-mail campaign undertaken by or on behalf of the Publisher;
“Journal” means any print publication published by or on behalf of the Publisher;
“Material” means any advertising material, copy, artwork, photographs, or other material provided or to be provided by the Customer in connection with the Insertion Order;
“Publication” means any Journal, Digital Format or E-mail Campaign;
“Publication Date” means the date the Customer’s Advertisement is first published in a Publication;
“Publisher” means the contracting entity set out on the invoice(s) submitted to the Customer by the Publisher.
“Rate Card” means the rate card of the Publisher as amended by the Publisher from time to time;
“Terms and Conditions” means the terms and conditions set out on this page as amended by the Publisher from time to time.
1.1. The Publisher reserves the right to place the word “Advertisement” in any Advertisement containing Material which the Publisher considers, in its sole opinion, to too closely resemble editorial content.
1.2. 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 and Conditions as a result of any event beyond the reasonable control of either of them.
1.3. Any notice or correspondence required to be given under these Terms and Conditions may be delivered personally or sent by prepaid registered post to the other party at the addresses set out in the Insertion 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.
1.4. If any provision of these Terms and Conditions 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 other Terms and Conditions set out herein, which shall remain in full force and effect.
1.5. A waiver by the Publisher of any breach if these Terms and Conditions will not be treated as a waiver of any subsequent breach of the same or any other provision by the Customer.
1.6. No third party shall have any rights to enforce these Terms and Conditions against the Publisher.
1.7. These Terms and Conditions and the Rate Card (both as amended from time to time in accordance with clause 7.9) 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.
1.8. 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.
1.9. The Publisher may from time to time, at its sole discretion, modify these Terms and Conditions or the Rate Card by publishing any changes online. The Customer should check online before placing an Insertion Order since by placing an order for the insertion of an Advertisement, the Customer agrees to be bound by any updates to such Terms and Conditions or Rate Card.
1.10. No variation or addition to these Terms and Conditions 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/or unenforceable.
1.11 The parties do and shall, in the performance of their respective obligations under these Terms and Conditions 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.
1.12 Non‐Exclusive Representation. Publisher hereby appoints Company as a non‐exclusive representative for the sale of Advertising on Publisher owned Websites. Pursuant to the terms of this Agreement, Company and its authorized representatives shall have the right to sell media space on the Publisher’s Websites for the display of Advertising. Publisher agrees to cooperate with Company to facilitate Company’s performance of the services described in this Agreement
1.13 Term. The effectiveness of these terms and conditions and your appointment of Company as a non‐exclusive representative shall continue until terminated by either party. Either party may terminate these terms and conditions with or without cause upon notice to the other party. Upon termination: (i) each party will cease using each other’s corporate name, marks and/or logo; (ii) Publisher will remove all Company owned ad technology from its Website; (iii) any undisputed final payment will be made in accordance with these terms and conditions; and (iv) Sections 8 through 15 will survive and remain in effect.
1.14 Publisher Requirements. During the term of this Agreement, Publisher agrees to maintain on the Website all ad code necessary for Company to serve Advertising. To enable Company to maximize the Advertising revenue for the Website, Publisher agrees to, at minimum, work with Company to ensure the quality of inventory that is allocated for sale. If Publisher approves any other form of Advertising that requires Publisher to add additional ad code or make other modifications to the Website, or otherwise to change Publisher’s advertising practices, Publisher agrees to take such required actions promptly and diligently. If Company requests that Publisher remove or alter certain ad code for any reason, Publisher agrees do so within twenty‐four (24) hours, and send an email confirmation to Company upon such removal or alteration.
1.15 Publisher Representations and Warranties. Publisher warrants and represents at all times that Publisher (i) owns and/or has the right to use all materials contained on the Website, including, without limitation, all copyrights, trademarks and other proprietary rights in and to such materials, (ii) has secured the requisite permission to use any person’s name, voice, likeness and performance as embodied in such materials, or any other element contained in said material; and (iii) the Website will not infringe the patents, copyrights, trademarks or any other right of any third party. In addition, Publisher represents and warrants at all times that Publisher’s Websites shall not contain, or contain links to, content promoting the use of alcohol, tobacco or any illegal substance; expletives or inappropriate language; content promoting illegal activity, racism, hate, “spam,” mail fraud, pyramid schemes, or investment opportunities or advice not permitted under law; content that is libelous, obscene, objectionable, defamatory, contrary to public policy, or otherwise unlawful, or any other content deemed inappropriate by Company in its sole discretion. Publisher agrees that it shall not run “robots” or “spiders” against its Websites or use any means to artificially increase amount of Advertising shown.
1.17 Confidentiality. Each party acknowledges that during the performance of its obligations under this Agreement, it may disclose Confidential Information (as defined below) to the other party (“Recipient”). “Confidential Information” means information regarding Discloser’s trade secrets, personnel, products, customers, financial data, marketing and pricing strategies, services, business plans, methods, computer systems architecture, network configurations, any information which is governed by any now‐existing or future non‐disclosure agreement between the parties, and any other information which is or should reasonably be understood by Recipient to be of a confidential or proprietary nature. Recipient agrees that it will not disclose any Confidential Information to anyone except an employee, agent or advisor (collectively, “Representatives”) who has a need to know same, and who is bound by confidentiality and non‐use obligations at least as protective of Confidential Information as are those in this Section, and that it will not use Confidential Information for any purpose not permitted under this Agreement. Recipient will protect the Confidential Information in the same manner it protects its own confidential and proprietary information, but in no event, shall such protection be less than a reasonable standard of care.
1.18 Mutual Warranty Disclaimer; Limitation of Liability. Company and Publisher make no warranties of any kind, whether express or implied, as to the subject matter of this Agreement, including any warranty of merchantability or fitness for a particular purpose. Company and Publisher shall not be liable for the actions or omissions of any Advertiser in connection with such Advertiser’s utilizing any advertising space on the Website, nor for the content of any such Advertiser’s Advertisement or other advertising materials. Company and Publisher shall not be liable for any unavailability or inoperability of the Internet, technical malfunction, computer error, corruption or loss of information. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL COMPANY’S OR PUBLISHER’S LIABILITY HEREUNDER EXCEED THE PAYMENTS MADE BY COMPANY TO PUBLISHER HEREUNDER DURING THE PRECEDING 12 MONTHS.
1.19 Legal Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and expenses, in addition to any other relief to which it may be entitled.
1.20 Governing Law. The parties agree that this Agreement will be construed in all respects in accordance with the laws of ________________ applicable to agreements entered into and to be wholly performed therein, and, in the event of any dispute related to the subject matter of this Agreement, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts located in ________________________________.
1.21 Force Majeure. Neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes (“Force Majeure”).
1.22 Severability. If any term or provision of this Agreement is declared illegal, invalid or unenforceable, the parties intend that the remainder of this Agreement shall not be affected thereby and that, in lieu of any such stricken provision, there shall be added as a part hereof, a substitute provision as similar in substance to the illegal, invalid or unenforceable term or provision as may be possible.
1.23 No Partnership. Nothing contained in this Agreement shall be construed to constitute a partnership or joint venture or any other fiduciary relationship. Neither party is the employee, agent, partner or joint venture of the other, it being understood and agreed that the relationship of the parties is that of independent contractors.
1.24 Defaults; No Waiver. No waiver by either party of any default hereunder shall constitute a waiver by such party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default. All remedies under this Agreement or under law or otherwise shall be cumulative and not alternative.
1.25 Entire Agreement. This agreement represents the entire agreement of the parties. All prior negotiations, representations and agreements are merged into this agreement. An amendment to this agreement must be in writing and does not bind a party unless the party signs the amendment. A course of conduct between the parties after execution of this agreement does not waive the requirement that an amendment must be in writing and signed by the parties sought to be charged in order for such amendment to be effective.
- PUBLICATION OF ADVERTISEMENTS
2.1. The Customer grants the Publisher an irrevocable, world-wide, royalty-free license to reproduce, publish and republish the Advertisement within the relevant Publication (irrespective of the medium or platform in or on which it is published) in accordance with the provisions of the Insertion Order.
2.2. The Publisher may reject, refuse, omit, postpone, cancel, or require changes to the whole or part of any Insertion Order or Advertisement submitted for insertion into a Publication at any time, whether or not it has accepted the Insertion Order, including the dates for publication and positioning of the Advertisement, or to accept the Insertion Order subject to additional conditions which will be notified by the Publisher to the Customer.
2.3. The Customer shall submit all Advertisements to the Publisher in accordance with the Publisher’s then current technical specifications (as may be updated from time to time), the current version of which is available on request;
2.4. Save to the extent caused by its negligence, the Publisher shall not be responsible for any error or omission in the insertion of any Advertisement, or for any damage or loss of any copy, electronic files, data, drawings or other materials supplied for the purpose of an Advertisement or any shrinkage or color alteration that may occur during the normal course of production.
2.5. It is the Customer’s responsibility to ensure that all Advertisements are correct, accurate and not misleading. The Publisher accepts no responsibility for any errors in an Advertisement 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 Advertisement in a Journal, in the event of an error in a published Advertisement as a result of a material typographical error caused by the Publisher, the Publisher agrees to re-run the Advertisement free of charge in the next available edition of such Journal.
2.6. The Customer acknowledges and agrees that any Advertisements 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.
3.1. The Customer shall pay the Publisher for all Advertisements submitted to the Publisher (and which are accepted by the Publisher) in accordance with this clause 3.
3.2. Rates for Advertisements are specified in the Rate Card or as may otherwise be agreed and/or notified in writing to the Customer from time to time. All rates are exclusive of VAT (or any other sales tax) which shall be due and payable by the Customer to the Publisher in addition.
3.3. Unless otherwise agreed by the Publisher in writing, the Publisher shall invoice the Customer for all amounts as they become due, which shall be after the date of first publication of the applicable Advertisement.
3.4. The Customer shall pay all invoices within 30 days of the date of the invoice.
Payment Terms. Company shall invoice and collect from Advertisers all Advertising fees. Company shall pay Publisher its share of Net Billings thirty (30) days after the month end in which the Advertising was delivered. In the event the Publishers compensation amount is less than $25.00 for any given month, Company shall hold payment until the total compensation due to the Publisher is greater than $25.00.
- Taxes. By participating in the Network, Publisher assumes complete and sole responsibility for any taxes owed as a consequence of such participation and agrees to indemnify and hold Company harmless from any such taxes. Company shall provide Publisher with appropriate tax information, including earnings on Form 1099 as required by applicable law. If Publisher resides in the United States, then Publisher agrees to provide its Social Security number or Federal Employee Identification Number and any other reasonable information to Advertising.com for tax reporting purposes. Such information will be used for no purpose other than for tax reporting purposes. If Publisher resides outside of the United States, then Publisher may be asked to complete appropriate forms for tax purposes and agree to accurately complete such forms. Advertising.com may withhold payment from Publisher in the event that Publisher does not provide accurate tax information or complete any necessary tax or reporting forms, as determined in Company’s sole discretion.
- Publisher Private Advertising. For Advertising sold by Publisher directly, the parties agree that the Company shall perform ad operations and platform support only. Publisher shall retain all revenue generated from the sale of Private Advertising provided that all Advertising not sold by Publisher directly is available to Company. In consideration for Company providing these services, Publisher shall pay to Company a $0.10 CPM serving fee for Private Advertising. Publisher is responsible for accounting, collection, and client management for Private Advertising.
- Adjustments. At the end of the monthly billing period, adjustments may be made to the Publisher payments due to Advertiser discrepancies, rate changes, or traffic fraud. These Adjustments are applied to Publisher by Company at their sole direction. Company reserves the right to withhold payment from Publisher if Publisher has engaged in activity that is either prohibited hereunder or is outside the scope of that which is permitted under this Agreement. Advertising served but not received due to end user blocking technology or software (e.g., pop‐up blocking software) shall not count towards any payout calculation.
3.5. Without prejudice to any other rights or remedies that the Publisher may have, if the Customer fails to pay the Publisher on the due date for payment, the Publisher may:
(a) claim interest under applicable law, and the Customer shall pay the interest immediately on demand; and
(b) remove any and all Advertisements the Publisher may have in any Publications until payment has been made in full.
3.6. If, on the anniversary of the Publication Date and where applicable:
(a) the number of Actual Advertisement Placements is less than the number of Expected Advertisement Placements for the preceding 12-month period, the Customer shall not be entitled to a refund of any amount from the Publisher;
(b) the number of Actual Advertisement Placements is greater than the number of Expected Advertisement Placements for the preceding 12-month period, the Publisher shall apply the relevant rate (as set out in the Rate Card) applicable to the number of Actual Advertisement Placements. In the event that the Customer still owes any amount to the Publisher (notwithstanding the application of a lower rate pursuant to the Rate Card), the Publisher may invoice the Customer for such amount which shall be payable by the Customer in accordance with clause 2.4.
3.7. The Customer may terminate any Advertisement in accordance with clause 5.1. The Customer has no other rights of cancellation. In the event that the Customer cancels an Advertisement other than in accordance with clause 5, the Customer acknowledges and agrees that it shall remain fully liable to pay to the Publisher for the Advertisement.
3.8. The Publisher reserves the right to change the rates in the Rate Card at any time and to publish the amended rates on its website. The then current prevailing Rate Card is available to the Customer on request from the Publisher advertising department.
4.1. The Customer contracts with the Publisher as a principal and warrants and represents to the Publisher that:
(a) it has full capacity and authority to enter into a binding contract with the Publisher on the provisions of these Terms and Conditions.
(b) 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;
(c) 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;
(d) 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;
(e) the Material complies with relevant regulatory guidelines;
(f) it shall not represent to any third party that the Publisher in any way endorses the Customer, the Advertisement and/or the Customer’s products or services;
(g) it shall ensure that all Advertisements submitted for publication are clearly recognizable as advertising and not designed to resemble editorial content. Where an Advertisement resembles editorial content or advertorial, the Customer warrants that the Advertisement and the Material complies with the Publisher’s guidelines concerning advertisements that resemble editorial content which are available to the Customer on request;
(h) where an Advertisement 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;
(i) the Material shall not indicate an intention to discriminate on grounds of sex, race, religion or belief, disability, ethnic origin, age or sexual orientation (unless such an Advertisement is exempted from any statutory requirements relating to such forms of discrimination and the Customer notifies the Publisher of the applicability of such an exemption at the time when the Insertion Order is submitted to the Publisher);
(j) 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;
(k) the Material shall not be prejudicial or damaging to the reputation of the Publisher or the Publications;
(l) 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 Insertion Order or these Terms and Conditions and accepts that the Publisher will not be liable for any such failure to any extent or at all;
(m) 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 an Advertisement published on any Digital Format that enables the Customer to track or analyze the online behavior of any user to which such Advertisement is served; and
(n) it has all necessary rights, licenses 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.
4.2. The Publisher warrants to the Customer that it shall use reasonable care and skill in carrying out its obligations under these Terms and Conditions. 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.
4.3. Customer agrees and acknowledges that the Publisher makes no representation or warranty that any publication of any Advertisement will be confined to persons resident in any particular legal jurisdiction; as to the exact number of page impressions that will be delivered on specific dates during an online campaign; as to the quality of reproduction of Advertisements in any of the Publications; the exact layout and format of any Publications which shall be in the discretion of the Publisher; 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.
5.1. Once an Insertion Order has been accepted by the Publisher, the Customer may only cancel or alter the Advertisement, the Materials or the Insertion Order up to 8 weeks from the agreed insertion date of the Advertisement. After the expiration of this date, the written consent of the Publisher will be required for any and all cancellations. If such consent is not granted, then the Customer will be liable for all sums due to the Publisher pursuant to this Agreement.
5.2. Without prejudice to any other rights or remedies which the Publisher may have, the Publisher may terminate the contract between it and the Customer (without any liability) immediately on giving notice to the Customer, in the event if: the Customer fails to pay any amount due to the Publisher on or by the due date for payment; or the Customer commits a material breach of any of the material Terms and Conditions; or the Customer repeatedly breaches any of these Terms and Conditions 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 and conditions; or the Customer enters into liquidation; becomes insolvent; ceases to carry on business; becomes subject to an administration order; is unable to pay its debts as they fall due; has a receiver or administrative receiver, or similar entity 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.
- LIABILITY AND INDEMNITY
6.1. Publisher 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.
6.2. 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 an Advertisement or Insertion Order shall not exceed the amount the Customer has paid the Publisher in connection with that Advertisement or Insertion Order.
6.3. 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: any other breach of these Terms and Conditions by the Customer; or any actual or potential infringement of a third party’s intellectual property rights; the publication by the Publisher of an Advertisement in accordance with an Insertion Order.