Advertising Agreement
This Advertising Agreement (the “Agreement”) is made and entered into between THM MANAGEMENT, LLC d/b/a TheHomeMag, a Florida limited liability company (hereinafter referred to as “THM”), and the named advertising company (hereinafter referred to as “Advertiser”). Each may be referred to as a “Party,” and collectively with the other, as “Parties” to this Agreement.
Article 1: General
1.1 Description of Services. During the term of this Agreement, THM will advertise Advertiser’s goods and services in its magazine pursuant to the terms and conditions set forth in this Agreement and in separate agreed upon written terms to which this Agreement is attached (the “Terms”), and which terms are incorporated herein by reference. In the event of a conflict between this Agreement and the Terms, the Terms shall prevail and control.
1.2 Duties and Responsibilities.
1.2.1 Deliver of Ad Proofs. THM will provide digital proofs for Advertiser’s print or digital advertisement, which will be used for corrections and/or changes only. Digital color is often slightly different than printed ink on paper, and THM cannot guarantee color accuracy.
1.2.2 Approval of Ad Proofs. If Advertiser fails to approve an advertising proof prior to the applicable deadline, THM may deem this to indicate Advertiser’s approval, and Advertiser shall continue to be responsible for all payments due under this Agreement. Failure to acknowledge or return any advertising proof will not alter the Advertising Agreement payment terms.
1.2.3 Ad Positioning. THM does not guarantee ad positioning within the magazine, except with a signed and accepted agreement calling for exact page and/or positioning (such agreement to be considered part of this Agreement upon execution), which if available, may be purchased at premium pricing.
1.2.4 No Ad Supplied. Should Advertiser reserve space in any publication and/or digital presence of THM and not supply advertising copy or artwork by the published deadline, THM may, at its discretion, either use Advertiser’s prior ad, changing only expiration dates where applicable, or cancel the balance of the Agreement and remove the Advertiser’s content from all future publications. Any unpaid balance at such time remains owed and shall be due immediately.
1.2.5 Discretionary Revisions and Refusal of Ads. THM also reserves the right, at its sole discretion, to edit, rewrite, or refuse any copy or art submitted for publication (whether in print or digital) which does not meet THM standards. No Advertiser may improperly use slogans, trademarks, or other intellectual property from another company, current or past, local or otherwise.
1.3 Payment. Payment for advertising placed in THM is due and payable prior to publication of the issue in which the advertising is scheduled to appear. Such payments received by THM from Advertiser later than 30 days after the date of publication are deemed late payments. Interest is charged on late payments at a rate of one percent (1.0%) per thirty 30 days after the date such payment is late, or the maximum permitted by law, whichever is less. THM’s acceptance of late payment(s) shall not be construed as a waiver of THM’s rights relative to any subsequent late payment(s) or any other event of default as set forth in this Agreement. Advertiser shall pay (i) all taxes and other government charges and (ii) reasonable expenses and attorneys’ fees THM incurs in collecting late payments.
1.4 Rate Adjustments. THM reserves the right to revise advertising rates at any time. Current advertisers will be notified in writing (email and/or mailed letter/notification) thirty (30) days prior to such an adjustment. In the event of a rate increase, Advertiser may cancel the Agreement within that thirty (30)-day period, at no penalty. If no response is received, the first ad published by the Advertiser, after the new rate becomes effective, shall indicate Advertiser’s acceptance of these new conditions.
1.5 Cancellations. Any In-book or digital Ad cancellations must be in writing (printed, email, or text). Any In-Book Ad cancellation received within a current issue cycle will be honored and accepted for the next immediate issue. Accessory Product cancellations (for items such as DML, Bookmark, and PopOut) will not be accepted within forty-five (45) days of the first Issue deadline for that contracted and scheduled product. No cancellations are allowed for multi-Issue Accessory Product print and-hold agreements once the first Issue has been printed.
1.6 Errors and Mistakes. THM may, at its discretion, offer a discount or rate reduction for errors and/or mistakes. Any errors or mistakes related to ads published in the magazine must be brought to THM’s attention within seven (7) days after the in-home date for the magazine.
1.7 Termination. THM reserves the right, at its sole discretion, to terminate this Agreement at any time, for any reason it deems necessary, with no prior notice to Advertiser. THM also reserves the right to refuse service to any person or company for any reason.
1.8 Amount Due on Termination. In the event of termination or expiration of this Agreement for any reason by any Party, all amounts due and/or payable by the Advertiser to THM shall survive the termination of this Agreement and such termination shall not limit or inhibit THM’s right to seek damages against the Advertiser for the unpaid amounts due to THM on account of this Agreement, and to seek any other remedies which may apply in law or in equity.
Article 2: Intellectual Property Rights and Confidential Information
2.1 Ownership of Intellectual Property. THM and Advertiser, respectively, are each owners or have license or other proprietary rights to certain trademarks, trade names, service marks, service names and logos (collectively, “Intellectual Property”). The Parties will retain all such ownership or license or other proprietary rights to their own Intellectual Property. All original material created by THM remains the property of THM and may not be reproduced in any manner. If THM’s original material is used by a competitor of THM, both the Advertiser and such competitor may be held responsible and liable for infringing on THMs Intellectual Property.
2.2 Grant of License by Advertiser. Unless informed otherwise, Advertiser grants THM full rights to reproduce any advertisement, in whole or in part, and to use such reproduction in any manner, in any market, including but not limited to using it in marketing materials and/or art files made available for use digitally and in all THM locations within or outside Advertiser’s print trading zone. Advertiser acknowledges that this permission is granted freely and that no fee will be paid in the event of any use of such advertisement.
2.3 Confidential Information. For purposes of this Agreement, “Confidential Information” means all knowledge and trade secrets of either Party gained and utilized by virtue of advertising in TheHomeMag®, any information, records, or data concerning either Party’s financial records or finances, technical information, existing and/or contemplated products and services, research and development, sales information, marketing and/or advertising information, development, any information concerning employees, any information concerning subcontractors or independent contractors, customer lists, supplier lists, trade secrets, designs, product formulations, product specifications, software, software design, source code, business processes or procedures, pricing models, pricing lists or structures, policies or procedures, any other proprietary or confidential information, any information that, by its nature, would be considered confidential however recorded or preserved, whether written or oral.
2.4 Protection of Confidential Information. During the term of this Agreement and for a period of five (5) years thereafter (including following any termination), the receiving Party agrees to retain in confidence and to refrain from using for the receiving Party’s benefit or the benefit of any third Party any and all Confidential Information (a) disclosed to the receiving Party by or on behalf of the disclosing Party; (b) obtained by receiving Party’s representatives while visiting the disclosing Party’s facilities. These restrictions shall not apply to Confidential Information which (1) is or become public knowledge through no fault of receiving Party or its representatives; (2) is lawfully made available to the receiving Party by an independent third party; (3) is already in the receiving Party’s possession at the time of initial receipt from disclosing Party and such prior possession can be properly demonstrated by the receiving Party; or (4) is required by law, regulation, or order of any governmental authority or agency to be disclosed by the receiving Party, provided, however, that the receiving Party shall give the disclosing Party sufficient notice to permit it to seek a protective order or other similar order with respect to such Confidential Information and thereafter the receiving Party shall disclose only the minimum Confidential Information required to be disclosed to comply.
2.5 Limitations on Use. Each Party agrees that it will not use the Confidential Information for any purpose other than for performing its obligations under this Agreement. Further each Party agrees to inform its employees, officers, representatives, agents, and subcontractors of the proprietary nature of the Confidential Information under this Agreement. The receiving Party shall be responsible for any breach of this Agreement by such receiving Party’s employees, officers, directors, owners, representatives, agents, and subcontractors.
Article 3: Warranties, Indemnification, and Limitation on Liability
3.1 Warranties. Advertiser represents and warrants to THM that the Advertiser: (i) has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (ii) is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except when the failure to be so licensed, authorized or qualified would not have a material, adverse effect on its ability to fulfill its obligations hereunder; (iii) will comply with all federal, state and local laws and regulations applicable to it in the performance of its obligations hereunder and will obtain all applicable permits and licenses required of it in connection with its obligations hereunder; (iv) will avoid deceptive, misleading or unethical practices that could adversely affect the performance of its obligations under this Agreement or, during the term or at any time thereafter, damage the reputation of THM; (v) has not entered into any agreement with a third Party, the performance of which is reasonably likely to prevent it from performing fully its obligations hereunder. Further, Advertiser represents and warrants to THM that (i) any and all licenses, permits, bonds, and insurances that are required in Advertiser’s business are in full force and effect pursuant to local, state, and federal guidelines, and (ii) all material submitted to THM is art which Advertiser has legal permission to use and that no art or assets submitted is in violation of any law and does not infringe on copyright, trademarks, trade names, patents, or any other intellectual property or privacy rights of any third Party of any type.
3.2 Indemnification. Advertiser shall defend, indemnify and hold harmless THM and each of its affiliates, and each of their respective former, current and future direct or indirect holders of any equity, controlling persons, incorporators, directors, officers, publishers, employees, agents, attorneys, members, managers, management companies, representatives, assignees and related persons, and any former, current and future direct or indirect holders of any equity, general or limited partnership or limited liability company interests, controlling persons, incorporators, directors, officers, publishers, employees, agents, attorneys, members, managers, management companies, portfolio companies, general or limited partners, stockholders, representatives, assignees and related persons of any of the foregoing (collectively, the “THM Parties”), from and against any and all damages, costs, losses or liability (including attorneys’ fees and related costs), whether or not resulting from a third-party claim, suit or proceeding, related to or resulting from (i) any breach (or any claim that, if true, would constitute a breach) of Advertiser’s representations, warranties or covenants contained in this Agreement, (ii) any breach or alleged breach of any intellectual property or privacy rights of any third Party, whether or not in connection with the publication of any advertisement of the Advertiser or otherwise, (iii) the content of any advertisement of the Advertiser, (iv) any action of any customer or prospective customer of Advertiser, whether or not such action relates to or arises from the advertisement of the Advertiser, and (v) the operation of Advertiser’s business or the goods or services provided by Advertiser in its business. The provisions of this section 3.2 shall survive the termination of this Agreement indefinitely.
3.3 Limitation on Liability. UNDER NO CIRCUMSTANCES, INCLUDING ANY INFRINGEMENT CLAIMS, SHALL THM BE LIABLE TO ADVERTISER OR ANY OTHER PARTY FOR ANY COSTS, LOST REVENUE OR PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF AS HAS BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE. IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED AT LAW, THM’S AGGREGATE LIABILITY FOR DAMAGES TO THE ADVERTISER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, FRAUD, NEGLIGENCE, PRODUCTS LIABILITY AND STRICT LIABILITY), SHALL BE LIMITED TO THE AMOUNT OF NO MORE THAN SIX (6) MONTHS OF PAYMENTS ACTUALLY RECEIVED BY THM FROM THE ADVERTISER PURSUANT TO THIS AGREEMENT.
3.4 Failure to Publish. Without limitation of the generality of the foregoing limitation of liability, the sole liability of THM for failure to publish any ad shall be limited to the cost of the advertising space, which if prepaid, will be refunded or traded in for like-kind for future ad space.
3.5 Services Provided by THM “As-Is”. The services provided by THM are provided “as is” without warranty of any kind, express or implied, including without limitation for non-infringement, satisfactory quality, merchantability and fitness for any purpose. Any use of the services offered by THM is at Advertiser’s sole risk. THM does not warrant that the services will be uninterrupted or error free, nor does THM make any warranty as to the performance or any results that may be obtained by use of the services or Product.
3.6 Rights Reserved by THM. THM reserves the right to seek remedy, relief, and damages against current and former advertisers that elect to compete, either in full or in part, directly or indirectly, with TheHomeMag® Print and/or Digital products.
Article 4: Miscellaneous
4.1 Force Majeure. THM shall not be held liable for any delays in the publishing digital content or the printing and/or delivery process of printed materials, and subsequently the Advertiser’s advertisement, or any failure to perform its obligations hereunder due to causes beyond its control, including but not limited to, acts of God, fire, flood, or other catastrophes; strikes, lock-outs, work stoppages or other labor difficulties, denial of service attacks, damage to transmission lines or devices and power failures.
4.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to principles of conflict of laws.
4.3 Venue. Venue for all suits arising pursuant to this Agreement shall lie exclusively in the courts of Lee County, Florida. By execution and/or adoption of this Agreement, each Party hereby submits to the in personam jurisdiction of all courts of Lee County, Florida.
4.4 Assignment. The Advertiser shall not assign or otherwise transfer any of its rights and obligations under this Agreement, except when expressly permitted to do so by THM’s prior, written consent. Notwithstanding any other provision in this Agreement to the contrary, THM shall be free to assign and transfer any and all of its rights and obligations under this Agreement. This Agreement is binding upon and enforceable by each Party’s permitted successors and assignees.
4.5 Severability. If any one or more provisions of this Agreement or in any instrument or other document delivered pursuant to this Agreement, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the validity, legality and enforceability of the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected or impaired thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law and the Parties shall negotiate in good faith a substantively comparable enforceable provision to replace the unenforceable provision.
4.6 Successors and Assigns. This Agreement and all the terms and provisions hereof shall be binding upon and shall inure to the benefit of the Parties and their respective legal representatives, successors and permitted assigns.
4.7 Entire Agreement; Amendment. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements in regard hereto and may be amended only by the unanimous written consent of the Parties.
4.8 Certified Partner Terms. Advertiser may apply to become a “Certified Partner” of THM. If accepted as a Certified Partner, then the Certified Partner Terms and Conditions, as such may be amended from time to time (the “CP Terms”), shall also apply to the Advertiser and such CP Terms are hereby incorporated by reference. The CP Terms shall in all respects be subject to the terms contained in this Agreement. In the event of a conflict between this Agreement and the CP Terms, this Agreement shall prevail.
4.9 Headings. The captions in this Agreement are inserted for convenience of reference only and shall not affect the construction of this Agreement.
4.10 Waiver. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof (whether or not similar).
4.11 Attorney’s Fees. In the event any Party brings suit in regard to this Agreement, the prevailing Party shall recover from the non-prevailing Party its reasonable expenses, court costs and attorneys’ fees. As used herein, expenses, court costs and attorneys’ fees include expenses, court costs and attorneys’ fees incurred pre-litigation and in any appellate proceeding.
4.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes. If this Agreement is being presented through a digital platform, clicking “I Agree” shall constitute an original signature of the Advertiser, and this Agreement will be deemed to have been duly and validly delivered and be valid and effective for all purposes.