WhatToDo Advertising Terms and Conditions
These terms and conditions (“T&Cs”) govern the use of any product or service ordered by “You” from WhatToDo, LLC (“WhatToDo”) on the www.whattodo.info website. These T&Cs shall govern any advertisement(s) or other material (the “Advertisement(s)”) submitted by You to be included in any of WhatToDo’s publications (the “Publications”) and/or on any of WhatToDo’s websites (the “Sites”) (in this context you are defined as “Advertiser”) or any content provided by WhatToDo (the “WhatToDoContent”) to be included on any of Your websites (in this context You are defined as “ContentUser”).
1. Payment Conditions; Rates.
a. You agree to pay to WhatToDo the fees identified for a product or service at the time of checkout via WhatToDo’s payment system, which uses PayPal®services.
b. For PRINT ADVERTISERS: If any fees are recurring, You shall authorize such recurring fees for the term of the product or service at the time of checkout.
As necessary, WhatToDo may forward invoices electronically or by mail to the billing address entered at the time of checkout, which are due and payable immediately. Any account that is not settled within 30 days of the date of invoice shall be subject to an interest charge of one and one-half percent (1½%) per calendar month compounded monthly or the maximum amount allowed under law.
c. For WEB ONLY ADERTISERS and WEBSITE CONTENT FEEDS: By signing up for a subscription service and providing credit card account information in WhatToDo’s payment system, You are agreeing to a recurring service and will be automatically charged every 30 days based on the date on which You first subscribed. At any point, You may terminate this service by requesting cancellation of Your subscription from WhatToDo at least 5 days prior to Your monthly billing date.
c. WhatToDo reserves the right to increase its rates under these T&Cs from time to time upon at least 30 days prior written notice to You. If You object to such rate increases, (i) Advertiser shall have the option to discontinue display of the Advertisement(s) in the Publications and on the Sites by giving written notice to WhatToDo, and (ii) Content User shall have the option to discontinue display of the WhatToDo Content on Content User’s website(s), prior to the effective date of such increase. Your right to discontinue the display of the Advertisement(s) or WhatToDo Content, as applicable, shall be Your sole remedy in the event of such a rate increase. If You do not discontinue display of the Advertisement(s) or WhatToDo Content, as applicable, then You shall be subject to the increased rate.
2. Advertising Agency. If You are using an advertising agency, You and such agency (the “Agent”) shall be jointly and severally liable hereunder, and WhatToDo may pursue any applicable remedies in the event of default under these T&Cs (including any non-payment) against the Agent or You or both without any requirement of first seeking a remedy from one or the other. These T&Cs render void any statements concerning liability which may appear on correspondence from the Agency or You. You and the Agent further agree that WhatToDo does not and will not accept advertising orders or space reservations claiming sequential liability. You 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 You) shall be invoiced by WhatToDo and paid by You. WhatToDo may dispose of any materials delivered to it unless acceptable prepaid return arrangements have previously been made.
4. Term; Termination. The term of these T&Cs shall commence on the date You place an order on the www.whattodo.info website or sign your print advertising. For subscription services, it shall continue in full for 30 days and thereafter, these T&Cs shall automatically renew for additional one month terms unless either party has given the other written notice of termination prior to the beginning of a renewal term. Either party may terminate the use of any product or service governed by these T&Cs in the event of a material breach of these T&Cs by the other party, which remains uncured after ten days written notice thereof. In addition, WhatToDo may terminate the use of any product or service governed by these T&Cs at any time for any reason upon 30 days written notice to You (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) or WhatToDo Content will expose WhatToDo to liability or other adverse consequences). In such event, You shall pay WhatToDo for earned but unpaid pro-rata fees.
5. Ownership. All of the WhatToDo Content, and any Advertisement(s) or other content to the extent that it represents and/or utilizes the creativity, illustration, labor, composition or material furnished by WhatToDo, is and shall remain the property of WhatToDo, including all intellectual property rights therein. You 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. These T&Cs cannot be invalidated and WhatToDo will not be liable for typographical errors, incorrect insertions or omissions in any of the Advertisement(s) or WhatToDo Content displayed pursuant to these T&Cs or omitted from display.
7. Default by You. WhatToDo may terminate the use of any product or service governed by these T&Cs at any time upon notice to You in the event of default by You in the payment of any invoice or any other breach of these T&Cs. Upon such termination, all charges for products or services delivered or completed hereunder shall become immediately due and payable, including interest on any sums not paid when due, as provided herein. Notwithstanding anything in these T&Cs to the contrary, any termination or cancellation of these T&Cs shall not release You from Your obligation to pay for all of the Advertisement(s) that have been displayed in the Publications or on the Sites or WhatToDo Content that has been displayed on Content User’s website(s), or for other charges as provided herein incurred prior to the date such termination or cancellation becomes effective. In addition to any of WhatToDo’s rights and remedies under these T&Cs, if You fail to timely pay as provided for herein, You agree that You shall be liable for all expenses incurred in connection with the collection of amounts payable herein, including interest, court costs and reasonable attorneys’ fees.
8. Failure to Display Material. WhatToDo is not required to display any of the Advertisement(s) or WhatToDo Content for the benefit of any person or entity other than You. 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) or WhatToDo Content contracted to be displayed, WhatToDo may suggest a substitute time period for the display of the interrupted or omitted Advertisement(s) or WhatToDo Content or run the Advertisement(s) or WhatToDo Content in a different position in any of the Publications or on any of the Sites or Content User’s website(s), as applicable. Alternatively, if no such substitute time period is acceptable to You, in Your good faith reasonable business judgment, WhatToDo shall provide a “makegood” 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) or WhatToDo Content. Such substitution in time period or placement of the Advertisement(s) or WhatToDo Content or reduction of fees shall be Your sole remedy for any failure to display the Advertisement(s) or WhatToDo Content and WhatToDo shall have no further liability.
9. Compliance with WhatToDo Policies. It is Your 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). Materials necessary to produce any of the Advertisement(s) or WhatToDo Content must be timely supplied by You. In the event of materials not being received by the material due date, WhatToDo reserves the right to obtain necessary materials at Your expense and to produce Advertisement(s) or WhatToDo Content that will not be subject to Your prior approval. WhatToDo will not accept and has no obligation to incorporate changes to materials unless they are received by WhatToDo prior to the material due date.
10. Removal or Change of Advertisement(s) or WhatToDo 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. Advertiser represents and warrants that all the Advertisement(s) or other materials 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 intellectual property, confidentiality, privacy or publicity).
12. Disclaimer; Limitation of Liability. WHATTODO MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WHATTODO SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON WITH RESPECT TO ANY LIABILITY, LOSS OR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, CAUSED BY OR ARISING OUT OF, EITHER DIRECTLY OR INDIRECTLY, ANY BREACH BY WHATTODO OF ANY OF THE TERMS OF THESE T&Cs, OR IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY ADVERTISEMENT(S) ORWHATTODO CONTENT, OR THE FAILURE TO DISPLAY ANY ADVERTISEMENT(S) IN THE PUBLICATIONS OR ON THE SITES OR WHATTODO CONTENT ON CONTENT USER’S WEBSITE(S). SPECIFICALLY, AND WITHOUT IN ANY WAY LIMITING THE FOREGOING, WHATTODO DOES NOT REPRESENT OR WARRANT THAT ANY ADVERTISEMENT(S) OR WHATTODO CONTENT WILL BE DISPLAYED 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 YOU FOR THE ADVERTISEMENT(S) OR WHATTODO CONTENT.
13. Indemnity. You 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 “IndemnifiedParty”), 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), 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 Your negligence or strict liability for a defective product, or claims based on the failure to honor a discount or offer made by You), (b) content or materials on Your website(s), other than the WhatToDo Content or (c) the breach of any representation or warranty made by You in these T&Cs. You shall defend at Your own expense any litigation instituted by any person or entity against an Indemnified Party resulting from a claim covered by this Section. An Indemnified Party shall have the right, at its option, to defend such litigation jointly with You. You 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 these T&Cs, WhatToDo does not guarantee any minimum level of audience, or minimum number of impressions or click-throughs with respect to the Advertisement(s) or WhatToDo Content.
15. Notices. Any notice required or permitted under these T&Cs shall be in writing and shall be delivered to the billing address entered at the time of checkout, 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 or WhatToDo Content on Content User’s website(s), such taxes shall be assumed and paid by You.
17. Assignment. These T&Cs may not be assigned or transferred by You without the prior written consent of WhatToDo.
18. Waiver. Failure of WhatToDo to enforce any provision of these T&Cs shall not be construed as a general relinquishment or waiver as to that provision or any other provision hereof.
19. Governing Law. These T&Cs 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 use of any product or service governed by these T&Cs.
21. Severability. If any provision of these T&Cs is held to be invalid, illegal, or unenforceable in any respect, that provision to that extent necessary shall be severed from these T&Cs (but, to the extent permitted by law, not otherwise), and shall not affect the remainder of these T&Cs, 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 these T&Cs.
23. Entire Agreement. These T&Cs contain the entire understanding between the parties relating to the subject matter herein contained and supersedes all prior agreements.
24. Children’s Online Privacy. WhatToDo does not target children under the age of 13 for the collection of information online.WhatToDo’s products, services, and websites are not designed to attract the attention of persons under the age of 13.