WhatToDo Advertising Terms and Conditions
Any Advertising Agreement (the “Agreement”) entered into by you (the “Advertiser”) with WhatToDo, LLC (“WhatToDo”) shall be governed by the following standard terms and conditions, which shall be incorporated by reference into the Agreement. These terms and conditions shall govern any advertisement(s) or other material (the “Advertisement(s)”) submitted by the Advertiser to be included in any of WhatToDo’s publications (the “Publications”) and/or on any of WhatToDo’s Websites (the “Sites”).
1. Payment Conditions; Rates.
a. Any invoices shall, at the discretion of WhatToDo and as required by applicable law, be forwarded electronically or by mail to the address stated on the Agreement and are payable immediately unless otherwise agreed in the Agreement. Any account that is not settled within 30 days of the date of invoice shall be subject to an interest charge of up to one and one-half percent (1½%) per calendar month compounded monthly.
b. WhatToDo reserves the right to increase its rates under the Agreement from time to time upon at least 30 days prior written notice to the Advertiser. If the Advertiser objects to such rate increases, it shall have the option to discontinue display of the Advertisement(s) in the Publications and on the Sites by giving written notice to WhatToDo prior to the effective date of such increase. The Advertiser’s right to discontinue the display of the Advertisement(s) shall be its sole remedy in the event of such a rate increase. If the Advertiser does not discontinue display of the Advertisement(s), then the Advertiser shall be subject to the increased rate.
2. Advertising Agency. If the Advertiser is using an advertising agency for the purposes of the Agreement, the Advertiser and such agency (the “Agent”) shall be jointly and severally liable hereunder, and WhatToDo may pursue any applicable remedies in the event of default of the Agreement (including any non-payment) against the Agent or the Advertiser or both without any requirement of first seeking a remedy from one or the other. The Agreement renders void any statements concerning liability which may appear on correspondence from the Agency or the Advertiser. The Advertiser and the Agent further agree that WhatToDo does not and will not accept advertising orders or space reservations claiming sequential liability. The Advertiser shall be solely responsible for any commission or other payment due to the Agent.
3. Expenses. Any and all expenses connected with the delivery of the Advertisement(s) or other content to WhatToDo and the return of such materials from WhatToDo (if return is directed in writing by the Advertiser) shall be paid by the Advertiser. WhatToDo may dispose of any materials delivered to it unless acceptable prepaid return arrangements have previously been made.
4. Term; Termination. The term of the Agreement shall commence on the date of the Agreement and shall continue in full force until the expiration date set forth in the Agreement, unless earlier terminated as provided herein. Either party may terminate the Agreement in the event of a material breach of the Agreement by the other party, which remains uncured after ten days written notice thereof. In addition, WhatToDo may terminate the Agreement at any time for any reason upon 30 days written notice to the Advertiser (or upon such shorter notice as may be designated by WhatToDo in the event that WhatToDo believes in good faith that further display of the Advertisement(s) will expose WhatToDo to liability or other adverse consequences). In such event, the Advertiser shall be responsible for pro-rata payments.
5. Ownership. All of the Advertisement(s) or other content that represents and/or utilizes the creativity, illustration, labor, composition or material furnished by WhatToDo is and shall remain the property of WhatToDo, including all rights of copyright therein. The Advertiser may not authorize the use of such material in any medium without WhatToDo’s prior written consent.
6. Technical Quality. WhatToDo shall not be responsible for any material that is not properly displayed or that cannot be accessed or viewed because the material was not received by WhatToDo in the proper form, in a timely manner, or in an acceptable technical quality for display in the Publications or on the Sites. The Agreement cannot be invalidated and WhatToDo will not be liable for typographical errors, incorrect insertions or omissions in any of the Advertisement(s) displayed pursuant to the Agreement or omitted from display.
7. Default by the Advertiser. WhatToDo may terminate the Agreement at any time upon notice to the Advertiser in the event of default by the Advertiser in the payment of any invoice or any other breach of the Agreement. Upon such termination, all charges for services completed hereunder shall become immediately due and payable, including interest on any sums not paid when due, as provided herein. Notwithstanding anything in the Agreement to the contrary, any termination or cancellation of the Agreement shall not release the Advertiser from its obligation to pay for all of the Advertisement(s) that have been displayed in the Publications or on the Sites, or for other charges as provided herein and in the Agreement incurred prior to the date such termination or cancellation becomes effective. In addition to any of WhatToDo’s rights and remedies under the Agreement, if Advertiser fails to timely pay as provided for in the Agreement, Advertiser agrees that it shall be liable for all expenses incurred in connection with the collection of amounts payable under the Agreement, including interest, court costs and reasonable attorneys’ fees.
8. Failure to Display Material. WhatToDo is not required to display any of the Advertisement(s) for the benefit of any person or entity other than the Advertiser. If, for reasons beyond WhatToDo’s control, including, without limitation, legal restrictions, acts of God, labor disputes, force majeure, necessity, mechanical or electronic failure, there is an interruption or omission of the display of any of the Advertisement(s) contracted to be displayed, WhatToDo may suggest a substitute time period for the display of the interrupted or omitted Advertisement(s) or run the Advertisement(s) in a different position in any of the Publications or on any of the Sites, as applicable. Alternatively, if no such substitute time period is acceptable to the Advertiser in the Advertiser’s good faith reasonable business judgment, WhatToDo shall provide a “make good” reduction in the amount of fees due to WhatToDo (or credit of fees already paid) equal to the proportionate amount of money assigned to the interrupted or omitted display of the Advertisement(s). Such substitution in time period or placement of the Advertisement(s) or reduction of fees shall be the Advertiser’s sole remedy for any failure to display advertising material and WhatToDo shall have no further liability.
9. Compliance with WhatToDo Policies. It is the Advertiser’s obligation to submit materials in accordance with WhatToDo’s then existing advertising criteria or specifications (including content limitations, technical specifications, privacy policies, policies regarding consistency with WhatToDo’s public image, community standards regarding obscenity or indecency, other editorial or advertising policies, and material due dates). Copy and other materials necessary to produce any of the Advertisement(s) must be timely supplied by the Advertiser. In the event of copy or materials not being received by the material due date, WhatToDo reserves the right to obtain necessary materials at the Advertiser’s expense and to produce Advertisement(s) that will not be subject to the Advertiser’s prior approval. WhatToDo will not accept and has no obligation to incorporate changes to copy or other materials unless they are received by WhatToDo prior to the material due date.
10. Removal or Change of Content. WhatToDo reserves the right within its sole discretion to reject or remove from the Publications or Sites any ads where the Advertisement(s) or the site to which the Advertisement(s) is linked online do not comply with its policies, or that in WhatToDo’s sole judgment, do not comply with applicable law, regulation or other judicial or administrative order. In addition, WhatToDo reserves the right within its sole discretion to reject or remove from the Publications or the Sites any ads where the Advertisement(s) or the site to which the Advertisement(s) is linked online may bring disparagement, ridicule or scorn upon WhatToDo, provided that if WhatToDo has reviewed and approved such Advertisement(s) prior to their use, WhatToDo will not immediately remove such Advertisement(s) before making commercially reasonable efforts to acquire mutually acceptable alternative advertising materials from the Advertiser.
11. Representations and Warranties. The Advertiser represents and warrants that all the Advertisement(s) it supplies to WhatToDo (a) is original and shall comply with all applicable laws, rules and regulations, and (b) does not contain libelous or slanderous material, or violate the personal or proprietary rights of any person or other entity (including, without limitation, rights of copyright, trademark, privacy or publicity).
12. Disclaimer; Limitation of Liability. WHATTODO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND WHATTODO SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO THE ADVERTISER OR ANY OTHER PERSON WITH RESPECT TO ANY LIABILITY, LOSS OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR SPECIAL OR CONSEQUENTIAL DAMAGES, CAUSED BY OR ARISING OUT OF, EITHER DIRECTLY OR INDIRECTLY, ANY BREACH BY WHATTODO OF ANY OF THE TERMS OF THE ORDER, OR IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY ADVERTISEMENT(S) PRINTED IN THE PUBLICATIONS OR ON THE SITES, OR THE FAILURE TO DISPLAY ANY ADVERTISEMENT(S) IN THE PUBLICATIONS OR ON THE SITES. SPECIFICALLY, AND WITHOUT IN ANY WAY LIMITING THE FOREGOING, WHATTODO DOES NOT REPRESENT OR WARRANT THAT ANY ADVERTISEMENT(S) WILL BE DISPLAYED IN THE PUBLICATIONS OR ON THE SITES WITHOUT INTERRUPTION OR ERROR. IN NO EVENT SHALL WHATTODO’S LIABILITY FOR ANY REASON OR UNDER ANY THEORY EXCEED THE AMOUNT PAID TO WHATTODO BY THE ADVERTISER FOR THE ADVERTISEMENT(S).
13. Indemnity. The Advertiser will indemnify and hold WhatToDo and each of its respective subsidiaries and affiliated companies, employees, officers, managers, members, agents, vendors, and third party service providers (each an “Indemnified Party”), harmless against all claims, losses, damages, and costs (including reasonable attorneys’ fees) that are incurred by them in connection with or resulting from (a) any Advertisement(s) of the Advertiser, or any websites or materials that can be linked to or through Advertisement(s) on the Sites (including, without limitation, any claim that the Advertisement(s) contain libelous or slanderous material, or violate applicable law or the personal or proprietary rights of any person or other entity, or claims based on the Advertiser’s negligence or strict liability for a defective product, or claims based on the failure to honor a discount or offer made by the Advertiser), or (b) the breach of any representation or warranty made by the Advertiser in the Agreement. The Advertiser shall defend at its own expense any litigation instituted by any person or entity against an Indemnified Party resulting from a claim covered by this Section 13. An Indemnified Party shall have the right, at its option, to defend such litigation jointly with the Advertiser. The Advertiser may not agree to any settlement that imposes any obligation or liability on an Indemnified Party without such party’s prior express written consent.
14. No Guarantee. Unless otherwise specified in the Agreement, WhatToDo does not guarantee any minimum level of audience, or minimum number of impressions or click-throughs with respect to the Advertisement(s) provided by the Advertiser.
15. Notices. Any notice required or permitted under the Agreement shall be in writing and shall be delivered to the contact person listed on the Agreement by hand delivery; registered, express, or certified mail, return receipt requested, postage prepaid; or nationally-recognized overnight courier. Such notice will be deemed to have been given as of the earlier of the date it has been so delivered, or five days after it has been mailed.
16. Taxes. In the event that any federal, state or local taxes are imposed on the display of the Advertisement(s) in the Publications or on the Sites, such taxes shall be assumed and paid by the Advertiser.
17. Assignment. The Agreement may not be assigned or transferred by the Advertiser without the prior written consent of WhatToDo.
18. Waiver. Failure of WhatToDo to enforce any provision of the Agreement shall not be construed as a general relinquishment or waiver as to that provision or any other provision hereof.
19. Governing Law. The Agreement shall be governed by the laws of the State of Colorado, without reference to its conflict of laws rules.
20. Force Majeure. If any party is prevented from performing any of its obligations due to any cause beyond the party’s reasonable control, including, without limitation, fire, war, terrorist activity, strike, riot, labor dispute, change of law, government policy or regulation, or an act of God, that party’s performance will be excused for the period of the delay or inability to perform due to such occurrence. Should such party’s inability to perform continue for more than 30 days, the other party shall have the right to immediately terminate the Agreement.
21. Severability. If any provision of the Agreement is held to be invalid, illegal, or unenforceable in any respect, that provision to that extent necessary shall be severed from the Agreement (but, to the extent permitted by law, not otherwise), and shall not affect the remainder of the Agreement, and the parties agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
22. Waiver of Jury Trial. Each party specifically waives any right to trial by jury in any court with respect to any claim against the other arising out of or connected in any way to the Agreement.
23. Entire Agreement. The Agreement contains the entire understanding between the parties relating to the subject matter herein contained and supersedes all prior agreements.