May, 18, 2021
These Media Terms and Conditions (“Terms”), together with the associated insertion or other order or statement of work (such order or statement of work being the “Order”), are an agreement (“Agreement”) between the Zonda customer identified in the Order (“Customer”) and Zonda Media, a Delaware corporation. (“Zonda”).
PAYMENT TERMS AND CONDITIONS
Except as otherwise expressly set forth below in these Terms or on the face of the Order, payment terms regarding any Order is net 30 days from invoice date. A 1.5% per month finance charge (or, if less, the maximum amount chargeable under applicable law) will be assessed on all invoices over 30 days in arrears. In addition, Customer will reimburse Zonda for the cost of any and all collection and legal services utilized by Zonda to collect any amounts due hereunder. Customers more than 60 days in arrears on any Zonda invoice must pay all outstanding invoices or, at Zonda’s discretion, submit payment with copy before any current or future insertions will be accepted. All applications for credit must be submitted 45 days prior to the date of the first insertion. Credit terms are strictly enforced.
Customer acknowledges that the pricing under this Agreement is the confidential information of Zonda, and Customer agrees to maintain such information in strict confidence (except that Customer may disclose such information to its employees and contractors and the Underlying Client on a need-to-know basis under confidentiality provisions at least as restrictive as those herein) and to use such information only in furtherance of this Agreement.
Notwithstanding any provision in the associated Order or anything else, if Customer is an agency entering into this Agreement in relation to or for one of its underlying clients (the “Underlying Client”), then Customer represents, warrants and covenants that: (i) such Underlying Client has read and understands the Agreement, including, without limitation, this Order; (ii) such Underlying Client has authorized Customer to enter into the Agreement, including, without limitation, the Order; (iii) such Underlying Client is in agreement with and has accepted the Agreement, including, without limitation, the Order; and (iv) such Underlying Client has agreed, for the benefit of Zonda, that such Underlying Client is responsible for any breach of the Agreement to the same extent as Customer (provided that this clause (iv) does not limit any liability or responsibility of Customer under the Agreement, including, without limitation, the Order). Zonda reserves the right to notify the Underlying Client regarding any overdue and unpaid invoices. Customer’s representations, warranties and covenants in this paragraph are the “Agency Warranties.”
Hanley Wood University, Strategic Marketing Services, and Native Advertising. When the Order includes products or services to be fulfilled by Hanley Wood University or Strategic Marketing Services, inclusive of Native Advertising—which products and services are notated by “EDU,” “SMS,” or “HWMK” on the Order—payment terms for such services are 50% upon signing and 50% upon the earlier of launch or (3) months after signing. Demand generation services related to such programs will be billed upon delivery of leads. For the avoidance of doubt, for products or services to be fulfilled by Hanley Wood University or Strategic Marketing Services that depend upon the provision of content or other assets by Customer, if Customer fails to provide such content and/or assets to Zonda within ninety (90) days of the applicable Order date, then Zonda will bill the Customer in full for all remaining amounts, including any related demand generation, and Zonda will have no further obligations to fulfill any obligations under the Order.
Event Sponsorships. One hundred percent of the amounts owing for any event sponsorship is earned upon signing, due net 30 days from invoice date.
Demand Generation. Demand generation services will be billed upon delivery of leads. If Customer fails to provide to Zonda, within ninety (90) days of the applicable Order date, any assets that Zonda requires from Customer in order to execute upon such program, then Zonda will bill the Customer in full for all remaining amounts and Zonda will have no further obligations to fulfill any obligations under the Order.
SHORT RATES, REBATES, AND FREQUENCY DISCOUNTS
Customer will be short-rated if, within a 12-month period from the date of the first insertion, Customer does not use the amount of media upon which billings have been based. Short rates will be based upon the rate earned against published rates. Rate adjustments, if any, may be made by Zonda at its sole discretion. Rebates will be earned, and applied to billings, when, in a 12-month period following the first insertion, Customer runs sufficient space/media to qualify for the lower rate. Media billed at quoted rate will earn maximum discount based upon Customer’s annual total spend in all Zonda products.
CANCELLATIONS AND REVISIONS
Except for cancellations made in accordance with the terms and conditions of this Agreement, Customer is fully responsible for all products or services ordered pursuant to this Agreement.
Print Media. All covers, preferred and special positions, are non-cancelable once contracted. For all other positions, Orders may be cancelled without penalty by Customer only upon written notice received by Zonda prior to the issue advertising close date. Customer is not entitled to review or revise advertisements that are received by Zonda’s production department after the published close date. If new materials or material instructions are not received by the production department by the published materials deadlines, Zonda will repeat the most recent ad materials.
Digital Media. Terms and conditions for digital media products shall follow the IAB Standard Terms and Conditions for Interactive Advertising for Media Buys One Year or Less, version 3.0, released February 2010 (the “IAB Terms”); such terms can be found in their entirety at: https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf; but see the below Order of Priority section. Please note that it is against Zonda’s policy to allow third parties to segment/cookie users based solely on impression delivery or page load for the purposes of retargeting (or “repurposing” in reference to Section 12 of the IAB Terms).
Hanley Wood University, Strategic Marketing Services, and Native Advertising. Hanley Wood University, Strategic Marketing Services and Native Advertising products and services are non-cancelable upon receipt by Zonda of an executed Order from Customer, except as is otherwise agreed to in writing by Zonda and customer. However, Customer acknowledges and agrees that, even if Zonda so agrees to a cancellation of such an Order, Customer shall be and remain liable for any and all work performed and services rendered by Zonda until the effective time and date of such cancellation and for any and all expenses incurred by Zonda until the effective time and date of such cancellation or otherwise in furtherance of the Order, including, without limitation, any expenses to become due pursuant to contracts entered into by Zonda in furtherance of the Order.
Customer understands that the completion and launch of the applicable program may depend on the timely provision by Customer of content and/or consent to proceed. The Order assumes that all programs will be completed within twelve months. Programs that extend beyond twelve months will be subject to a change order and will incur additional costs to complete.
Event Sponsorships. Non-cancelable upon receipt by Zonda of an executed Order from Customer, except as is otherwise agreed to in writing by Zonda and Customer.
By submitting an Order, Customer accepts such order is subject to these Terms. Zonda is not bound by any Order or other document that conflicts with these Terms or by any oral or written promises or representations made by its sales representatives, and no such promises or representations have been relied on by Customer in entering into this Agreement. Any discrepancy between the price or terms set forth on an Order and Zonda’s quoted/proposed rate shall be deemed a clerical error, and Customer will be charged in accordance with the quoted rate.
Zonda at its sole discretion may reject advertising for any reason including, without limitation, unsuitability. Advertising copy that may be mistaken by a reader as news or other non-advertising materials must be clearly marked “Advertisement”. Zonda reserves the right to add the word “Advertisement” above or near any advertisement that in Zonda’s sole judgment, too closely resembles editorial content of the publication.
All Orders are accepted by Zonda based on Customer’s representation and warranty (made by Customer by this reference) that such Orders have been, and all advertisements are accepted and published based on Customer’s representation and warranty (made by Customer by this reference) that publication of the contents has, in each case, been duly authorized by Customer and, if Customer is an agency, the Underlying Client. Customer (and the Underlying Client, jointly and severally with Customer, if Customer is an agency) will indemnify and hold harmless Zonda, its members, officers, employees, and agents, from and against any and all liabilities, losses and damages resulting from claims, suits, actions, demands, judgments, or orders based on the contents of subject matter of Customer’s (or the Underlying Client’s) advertisement including, without limitation, allegations that such advertisements constitute libel, violation of privacy rights, plagiarism, trademark or copyright infringement, or resulting from or relating to any breach of any of the Agency Warranties or any of the warranties set forth above in this paragraph.
DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE ORDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL PRODUCTS, SERVICES AND MATERIALS ARE PROVIDED “AS IS”, AND ZONDA EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT ZONDA KNOWS, HAS REASON TO KNOW, OR HAS BEEN ADVISED OF ANY SUCH PURPOSE); (B) ANY WARRANTY REGARDING RESULTS OBTAINABLE OR TO BE OBTAINED BY CUSTOMER AS A RESULT OF PROVISION OR USE OF ANY OF THE PRODUCTS, SERVICES AND MATERIALS PROVIDED HEREUNDER; AND (C) ANY WARRANTY OF UNINTERRUPTED, TIMELY, OR ERROR-FREE OPERATION OF ANY PRODUCT OR MATERIAL OR PROVISION OF ANY SERVICE.
NOTWITHSTANDING ANYTHING ELSE, NEITHER ZONDA NOR ANY OF ITS VENDORS AND LICENSORS SHALL BE LIABLE WITH RESPECT TO ANY PRODUCT, SERVICE, MATERIAL OR OTHER SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY THEORY OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR: (I) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR OTHER INDIRECT DAMAGES OF ANY CHARACTER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS, REPLACEMENT COSTS OR LOST BUSINESS, EVEN IF THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (II) DAMAGES IN THE AGGREGATE GREATER THAN THE FEES PAID OR PAYABLE BY CUSTOMER TO ZONDA UNDER THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY; THE FOREGOING LIMITATIONS ARE ESSENTIAL TO THIS ORDER, WITHOUT WHICH LIMITATIONS ZONDA WOULD NOT AGREE TO THIS AGREEMENT.
Except with respect to such party’s payment, confidentiality and indemnification obligations under this Agreement, neither Zonda nor Customer shall be liable under this Agreement for any delay in performing or failure to perform under this Agreement to the extent that such delay or failure is a direct result of any cause beyond the reasonable control of such party and not due to the negligence on the part of such party. Causes beyond a party’s reasonable control may include, but not be limited to, acts of God (such as fire, storm, earthquake, hurricanes, tornados and the like), electrical outages, labor disputes, wars, hostilities, revolutions, riots, civil commotion, national emergency, unavailability of supplies, plagues, epidemics, pandemics, outbreaks of infectious disease or any other public health crisis (including related quarantines and employee restrictions), force of nature or explosion or any law, proclamation, regulation, ordinance or other act or order of any court, government or governmental agency. The party claiming excuse must promptly notify the other party of the events and related circumstances and their expected duration, and such claiming party must use its best efforts to mitigate the effects of such events and circumstances and to perform hereunder.
This Agreement (including the associated Order) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements, negotiations, representations and warranties, understandings and communications, whether written or oral, between the parties hereto regarding such subject matter. In furtherance of the foregoing, this Agreement, including, without limitation, these Terms and the Order, prevails over any terms or conditions contained in any other document whenever issued by Customer pertaining to the subject matter of this Agreement.
ORDER OF PRIORITY
In the event of any ambiguity, inconsistency or conflict between or among any of the provisions of two or more of the following listed parts of this Agreement, the following priority (in descending order of priority) shall apply with respect to which part (including, without limitation, the provisions contained therein) shall control and govern with respect to the conflict: (1) the Order; (2) these Terms; and (3) if applicable, the IAB Terms.
This Agreement shall be governed by and construed in accordance with the laws of the District of Columbia without regard to the conflicts of law provisions thereof or of any other jurisdiction. The parties hereby submit to the jurisdiction of the federal courts in the District of Columbia, and agree that said courts have the sole and exclusive jurisdiction over any and all disputes, claims, actions, controversies and causes of action involving any of such parties that arise out of or relate to this Agreement. The prevailing party in any action to enforce this Agreement shall be entitled to reimbursement (from the other party) of such prevailing party’s costs and fees (including, without limitation, reasonable attorneys’ fees and expert witness fees) incurred in connection with such action. In the event that any of the provisions of this Agreement are held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. No amendment, modification or waiver of this Agreement (or any part hereof) will be binding upon any particular party hereto unless made in writing and signed by a duly authorized representative of such party, and no failure or delay in enforcing any right will be deemed a waiver. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and assigns, provided, however that Client may not assign or delegate this Agreement, in whole or in part, without the prior written consent of Zonda. Nothing in this Agreement creates, or will be deemed to create, third party beneficiaries of or under this Agreement. No provision of this Agreement shall be construed against a party by reason of the fact that such party or its legal counsel drafted that provision, notwithstanding any rule of law or any legal decision to the contrary. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together shall constitute one and the same instrument. A party’s facsimile, electronically scanned or electronic signature to this Agreement shall be deemed an original for purposes of evidencing such party’s execution of this Agreement.