ML - Modern Luxury Media Kit

52 A. Advertising Material & Limitation of Publisher's Liability 1. Advertising material submitted by any Advertiser Party shall conform to the regulations of Publisher as set forth in this Agreement and/or the Rate Card. Independently (and not in lieu) of their purchase obligations hereunder, any Advertiser Party may purchase advertisements separately in any Publication. The Advertiser Parties hereby acknowledge and agree that they must comply with the deadlines for submission of copy and corrections established by Publisher from time to time and understand that the failure to meet such deadlines may result in Publisher determining to insert a previous advertisement, or prepare an insert and advertisement without copy or layout approval of the Advertiser/ Advertising Party if a previous advertisement does not exist. Publisher reserves the right to: (i) classify all advertisements, (ii) delete objectionable words or phrases, (iii) refuse or revise any advertisement, and (iv) change regulations and rates applicable to such advertisements subject to terms of this Agreement. 2. Any cancellations of advertisements shall be governed by the terms of the Rate Card. Unless otherwise agreed in writing by the Publisher and the Advertiser Parties, all advertising purchased hereunder shall be placed in the relevant Publication(s) at the discretion of the Publisher. While Publisher will make reasonable efforts to honor the Advertiser Parties' position requests, no specific section, page or classification is promised or guaranteed by Publisher hereby. 3. Publisher assumes no responsibility for any subject matter contained in any advertisement or other material placed by any Advertiser Party pursuant to this Agreement. Publisher reserves the right, in its sole discretion, to reject any advertising content or material (i) not in keeping with the standards imposed by Publisher from time to time and/or (ii) which are defamatory, libelous or obscene, or which promote violence, hate or illicit drugs, as determined by Publisher in its sole discretion. 4. Each Advertiser Party hereby agrees that all advertising and materials submitted to Publisher in connection with this Agreement (i) shall comply with all applicable federal, state and local laws, ordinances, regulations, guidelines and administrative standards as now or hereafter in effect and (ii) shall not violate any rights of third parties, including, but not limited to, infringement or misappropriation of any copyright, trademark, trade secret, image or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, discrimination (whether based on race, religion, sexual orientation or any other illegal or improper basis) or any other right of any person or entity. The Advertiser Parties, jointly and severally, hereby agree to indemnify and hold Publisher harmless against all loss, damage, expense, claim, liability or injury, including attorneys' fees and costs, sustained by reason of Publisher's printing advertising for the Advertiser Parties, which give rise, directly or indirectly, to any claim for (i) slander, libel, infringement or misappropriation of trademark, trade name, trade secret, copyright, patent image or similar right, (ii) damages in tort, (iii) violations of statutes regulating solicitations by facsimile, telephone, mail or email, (iv) illegal or unfair competition or trade practice, or (v) any other demand, claim, allegation or assertion of any sort whatsoever. This provision shall survive termination of this Agreement. 5. In the event Publisher fails to publish advertising purchased hereunder or in the event that errors are made in the publishing of advertising purchased hereunder, Publisher's liability to any Advertiser Party shall not exceed the cost (as determined under the Rate Card) of (i) in the case of a failure to publish an advertisement, the advertising space actually occupied by such advertisement, or (ii) in the case of an error or omission, the advertising space actually occupied by such error and/ or omission. Publisher shall have no liability for any errors in respect of any advertisement (whether such errors are Publisher's errors or are contained in the Advertiser Parties' proof of such advertisement) that do not materially affect the value of such advertisement. Each Advertiser Party hereby expressly waives and releases Publisher from any and all liability for actual, special, incidental and/or consequential damages (whether based on breach of contract, tort (including negligence), or otherwise, including claims for lost profits or business, and whether or not such party has been advised of the possibility of such damage) claimed to result from or arise in connection with the publication of and/or failure to publish advertising for any Advertiser Party. Notwithstanding the foregoing, Publisher does not assume, and in no event shall Publisher have, any liability or responsibility for errors in advertising purchased hereunder unless a proof of such advertising is requested by an Advertiser Party and submitted to Publisher with the error or correction plainly noted in writing thereon prior to the scheduled publication date of such advertising. Publisher shall not be liable to any Advertiser Party for, or be considered to be in breach of or default of this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond Publisher's reasonable control, or if such performance is prohibited by applicable law or regulation, and that Publisher is unable to overcome through the exercise of commercially reasonable diligence. 6. Each Advertiser Party hereby grants to Publisher, during the term of this Agreement, a non-exclusive, fully paid, royalty free, worldwide license to use such Advertiser Party's trademarks and copyrightable materials supplied by such Advertiser Party as is reasonably necessary for Publisher to perform its obligations under this Agreement. 7. Each Advertiser Party hereby agrees that any original creative artwork, logos or designs created by Publisher under this Agreement, and any copyrights in respect thereof, are, and shall remain, the exclusive property of Publisher and may not be provided to any other person or entity without the prior written consent of Publisher. Subject to this reservation of rights, Publisher hereby provides to the Advertiser Parties unlimited use of such Publisher-created original creative artwork, logos or designs in advertisements and materials published by Publisher. One- time licenses to use Publisher-created original creative artwork, logos or designs for advertising to be placed with publishers, or other media outlets (other than in products published or distributed by Publisher) may be purchased from Publisher by Advertiser or Agency under a separate agreement. 8. All copy, artwork, and advertising materials provided to the Publisher will be returned to the relevant Advertiser Parties upon request, providing that payment in full for the relevant advertisement(s) has been received. Publisher is not responsible for any damage to any such materials held in storage for the Advertiser Parties and shall be insured and/or indemnified by Advertiser for any loss in respect thereof due to fire, water or similar damage while such materials are in Publisher's possession or in transit. Unless the Advertiser Parties specifically request in writing that Publisher hold such materials in storage, after six (6) months, Publisher may dispose of any portion of such materials as it deems appropriate, in its sole discretion. B. Rates & Terms of Payment 1. The Agreement is made and accepted pursuant to the rates, terms and conditions set forth in the Rate Card. Publisher reserves the right to revise and amend its Rate Card in its sole discretion. The Publisher reserves the right to revise advertising rates at any time, and all advertising contracts are accepted by Publisher subject to this reservation. All advertising rates reflected in this contract and/or attached Insertion Order are NET rates. 2. Publisher may revise the rates for advertising purchased hereunder upon fifteen (15) calendar days' advance written notice to any Advertiser Party. Advertiser hereby expressly agrees that any such notice to an Agency, if any, shall constitute notice to Advertiser. Notice shall be complete upon deposit in the U.S. mail or overnight delivery service, property addressed to the relevant Advertiser Party's address set forth herein, or to such change or address that may be amended in a written notice to the other party. The Advertiser Parties may terminate this Agreement following receipt of any such notice of a rate revision by giving fifteen (15) calendar days' advance written notice of termination to Publisher. In the event of such termination, the rates for advertising purchased before and including the date of termination shall be at the rate as set forth in the Rate Card in effect on the date(s) of publication, for the minimum amount of spending on advertising specified under this Agreement, and the rate for all advertising purchased after the date of termination shall be the Open Rate, as set forth in the Rate Card in effect on the relevant date(s) of publication. 3. If the Advertiser Parties place a dollar-volume of advertising less than the minimum quantity required by this Agreement, or otherwise violates or dishonors this Agreement or any Insertion Order, Publisher may, at its option, (i) "short rate" the Advertiser Parties (i.e., bill the Advertiser Parties for the difference between the one-time rate for the size of the advertisement run and the multi-issue rate at which the Advertiser was previously billed) and/or (ii) terminate this Agreement as provided herein. 4. This Agreement does not constitute an extension of credit by Publisher to any Advertiser Party. Publisher, at its option and in its sole discretion, may at any time require the Advertiser Parties to pay in advance for all advertising purchased hereunder by way of cash, check or electronic transfer of immediately available funds. Publisher may, at its option and in its sole discretion, extend one or more of the Advertiser Parties credit upon the completion of an application for credit and/or receipt by Publisher of one or more personal guarantees by the Advertiser Parties or their representatives. In the event Publisher makes such an extension of credit, Publisher shall submit statements for advertising purchased hereunder to the Advertiser Parties and payment shall be made to Publisher in the full amount thereof. TERMS & CONDITIONS

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