BASEBALL AMERICA ENTERPRISES
STANDARD ADVERTISING TERMS AND CONDITIONS
1. SCOPE. These Standard Terms & Conditions and the attached Insertion Order (the “I.O.” and, together with these Terms and Conditions, the “Agreement”) govern the terms under which BASEBALL AMERICA ENTERPRISES, LLC (“BBA”) may place advertisements from the Advertiser (a) in a print publication owned and published by BBA (the “Magazine”) and (b) on a BBA’s digital network (the “Digital Network”). As used herein, the term “Advertiser” means the advertiser identified on the I.O. or space order contract and the term “Agency” means the advertising or media agency working on behalf of the Advertiser. By submitting an order for placement of an advertisement and/or placing an advertisement, Advertising and Agency, and each of them, agree to be bound by all of the following terms and conditions.
2. DELIVERY OF AD UNITS. BBA will use commercially reasonable efforts to deliver the ad units (“Ad Units”) as specified in the I.O. Notwithstanding any line item breakout in the I.O., with respect only to Ad Units placed on the Digital Network, BBA is obligated to deliver the aggregate number of impressions in the I.O. as a whole but BBA has no obligations to deliver “click-throughs” or “acquisitions” or similar deliverables. Unless the I.O. requires BBA to deliver an aggregate number of impressions or to place an Ad Unit on a specific BBA property or page, (a) BBA has no obligation to publish, post or otherwise deliver any impressions in any BBA property, (b) BBA makes no guarantees with respect to the method BBA uses for measuring delivery or with respect to the accuracy of our measurement and (c) the positioning of Ad Units within the BBA properties (including without limitation timing of delivery) is at BBA’s sole discretion.
3. BBA CREATIVE DEADLINES. Creative for all Ad Units must be received at least five (5) business days for static creative or ten (10) business days for rich media creative prior to campaign start date. Advertiser shall not drop pixels into the Creative for any Ad Units (through means of a java script tag or otherwise) for purposes of re-targeting the consumer. There are no modifications to the Creative for a current campaign. Creative should be sent to email@example.com. For purposes of this Agreement, “Creative” shall mean Advertiser’s creative materials for Ad Units including without limitation, text, graphics, and other materials provided by Advertiser to BBA.
4. BBA CREATIVE APPROVALS. All Creative for all Ad Units in the Magazine or on the Digital Network are subject to BBA’s prior approval. BBA reserves the right to reject or cancel any advertisement prior to publication or thereafter for any reason at any time without liability whether or not the same has previously been accepted and/or run. Such cancellation or rejection shall not preclude or otherwise affect payment for similar Creative previously run. BBA may, in its sole discretion, set any restrictions on the positioning of the actual Ad Unit in the Magazine or on the Digital Network. BBA reserves the right to modify (at the Advertiser’s expense) any Ad Unit, with the Advertiser’s approval generally but without the Advertiser’s approval if the Ad Unit materials are received after the posted and/or printed Ad Unit materials due date, in the event that BBA finds that the copy, artwork or any other creative elements fail to meet BBA’s specifications or are not in compliance with BBA’s advertising guidelines. BBA reserves the right in its sole discretion to label as advertisements all advertisements that are not immediately identifiable as advertisements. All orders to place advertisements in the Magazine and/or the Digital Network are subject to the rate card changes, place units and specifications then in effect, all of which are subject to change and shall be made a part of these terms and conditions. BBA makes no representations or warranties with respect to the quality of the appearance of the advertisement, and in no event shall BBA be responsible for the production quality of any materials or inserts provided to BBA. Advertiser and Agency shall be responsible for any additional costs incurred by BBA in resulting from the failure of any materials or inserts furnished to BBA to meet BBA’s specifications. In the event that BBA is unable to publish the furnished materials or inserts as a result of their failure to meet such specifications, Advertiser and Agency shall remain liable for the applicable rate card charges as if the advertisements had run.
5. PAYMENTS. Advertiser will pay BBA the fees as set forth in the I.O. BBA will invoice Advertiser for all fees under this Agreement, and Advertiser will pay BBA all invoiced amounts within 30 days of Advertiser’s receipt of an invoice. Advertiser will be responsible to pay to BBA interest at the rate of the lesser of 1% per month or the greatest interest rate allowed by applicable law for all invoices outstanding more than 30 days. Advertiser and Agency shall be jointly and severally liable for the costs of placing the advertisement and any other charges relating thereto, including any costs of collection incurred by BBA, including without limitation BBA’s attorneys’ fees.
6. MAKEGOODS FOR DIGITAL NETWORK AD UNITS; AD SERVERS.
With respect to Ad Units to be placed on the Digital Network only,
(a) if (i) BBA fails to deliver, in aggregate, the number of total impressions (if any) in the I.O. by the end of the Term, or (ii) an Ad Unit fails to appear or function as provided in this I.O. for any reason, BBA’s liability is limited to the following (in its sole reasonable discretion after discussing with the Advertiser): (A) a pro rata refund of the advertising fee representing undelivered or inaccurately delivered impressions, (B) placement of the Ad Unit at a later time in a comparable position, or (C) extension of the Term, with a pro rata refund representing any remaining undelivered or inaccurately delivered impressions at the end of such extended term.
(b) BBA will track delivery of the Ad Units through its ad server (DoubleClick for Publishers) and Advertiser will also track delivery through its proprietary or subcontracted 3rd Party Ad Server identified in the I.O. Advertiser may not substitute the 3rd Party Ad Server specified in the I.O. without BBA’s consent. BBA and Advertiser agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide placement-level activity reports to each other. In the event that BBA’s ad server measurements are higher than those produced by the Advertiser’s 3rd Party Ad Server by more than 25% over the invoice period, Advertiser will facilitate a reconciliation effort between BBA and 3rd Party Ad Server. Advertiser must alert BBA in writing about the discrepancy. If the discrepancy cannot be resolved and Advertiser has made a good faith effort to facilitate the reconciliation effort, Advertiser reserves the right to cancel this Agreement within 14 days of the discrepancy’s discovery or pay BBA based on BBA’s Ad Server reported data, plus a 10% upward adjustment to delivery. Notwithstanding the foregoing, any ad server measurements provided by Advertiser must be delivered to BBA no later than 30 days following the conclusion of the prior delivery month. If such ad server measurements are not received within such time frame then BBA shall invoice Advertiser for delivered media as reported by DoubleClick for Publishers.
(c) Where an Advertiser is utilizing a 3rd Party Ad Server and that 3rd Party Ad Server cannot serve the ad, the Advertiser shall have a one-time right to temporarily suspend delivery under the I.O. for a period of up to 72-hours. Upon written notification by Advertiser of a non-functioning 3rd Party Ad Server, BBA has 24 hours to suspend delivery. Following that period, Advertiser will not be held liable for payment for any ad that runs within the immediate 72-hour period thereafter until BBA is notified that the 3rd Party Ad Server is able to serve ads. After the 72-hour period passes and Advertiser has not provided written notification that BBA can resume delivery under the I.O., Advertiser will pay for the ads that would have run or are run after the 72-hour period but for the suspension and can elect BBA to serve ads until its 3rd Party Ad Server is able to serve ads. If Advertiser does not so elect for BBA to serve the ads until its 3rd Party Ad Server is able to serve ads, BBA may utilize the inventory that would have been otherwise used for BBA’s own advertisements or advertisements provided by a third party.
(d) Upon notification that the 3rd Party Ad Server is functioning, BBA will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond this period, without reasonable explanation, will result in BBA owing a makegood to Advertiser.
(e) Where a certain advertising campaign requires a 70% viewability threshold, BBA shall approve the third party vendor engaged by Advertiser for monitoring and reporting purposes. In the event the 70% viewability threshold is met, BBA shall invoice Advertiser for 100% of impressions delivered.
(f) Should Advertiser use a 4th Party Vendor with the capability to monitor and/or block advertising impression delivery with respect to Ad Units to be delivered on the Digital Network, Advertiser shall notify BBA in writing before this IO is executed. All 4th Party Vendors that employ monitoring pixels on Ad Units shall execute BBA’s standard non-disclosure agreement. BBA shall not pay for some or all of the serving fees for tracking pixels by 4th Party Vendors without the prior written consent of BBA which shall be reflected in the IO. All dollar amounts and payment terms shall be added to the existing CPM; provided, that, such rates have not been communicated to BBA when securing its consent. 4th Party Vendors shall not collect audience data without prior written consent from BBA, and if consent is granted 4th Party Vendors represents and warrants that it shall not disclose any such audience data to any party other than 4th Party Vendor, Advertiser and/or BBA. 4th Party Vendors shall not provide traffic tags that distribute 4th Party Vendor advertising units preceding the Ad Units, unless BBA consents within the IO. Provided that BBA does not permit the distribution of 4th Party Vendor advertising units to precede the Ad Units, BBA must review and agree to blocking parameters in writing before the advertising units run. Impressions that are blocked from delivering by 4th Party Vendor tags are not eligible for makegood unless parameters are already determined. 4th Party Vendor(s) shall be defined herein as a vendor that is not a 3rd Party Ad Server and not the billing party.
7. LICENSE. Advertiser grants BBA under this Agreement the right and license to use, reproduce, transmit and distribute its Creative. Advertiser and its agency, if applicable, represents to BBA that the Creative submitted by it for BBA contains no illustrations, text or images that violate the proprietary right of any third party and that such Creative is not libelous or obscene.
8. TERM AND TERMINATION. This Agreement shall be for the term in months stated on the I.O. (“Term”) and shall commence on the date this Agreement is executed, unless this Agreement is amended in Term or terminated sooner in accordance with this Agreement. Advertiser may terminate this Agreement upon 30 days’ prior written notice to BBA before the latest “end date” specified in the I.O. Advertiser may cancel with no penalty if at least 30 days advanced notice is given prior to the agreed-upon start date. Cancellations or changes in orders must be made in writing to BBA. If less than 30 days’ notice is given, Advertiser is 100% accountable for the cost of impressions delivered until the cancellation date. If a contracted program is not completed, program rates will be adjusted to rates earned based on impressions run and current Advertising Program rates, and Advertiser will be billed for the applicable adjustment. If contracted program is for exclusive sponsorship advertising, Advertiser is 100% financially accountable for each day of the Term, regardless of whether Advertiser submitted Creative any day following the commencement date stated on the I.O.
9. REPRESENTATIONS. Advertiser and Agency hereby represent and warrant that:(a) they have the right to place the advertisement in the Magazine and/or the Digital Network; (b) nothing contained in the advertisement violates or will violate the intellectual property rights, confidentiality rights, proprietary rights, privacy rights, property rights, or contract rights of any person or entity; (c) nothing contained in the advertisement will defame or disparage any person or entity; and (d) nothing contained in the advertisement will violate any law, rule, or regulation, including without limitation any U.S. Postal regulations. In the event an IO is entered into by an Agency, Agency represents and warrants that it has the full right and authority to place such IO on behalf of the Advertiser and that all legal obligations arising out of the placement of the advertising creative will be binding on both the Advertiser and the Agency.
(a) Advertiser shall defend, indemnify, and hold BBA and its affiliates and each of their members, managers, officers, directors, employees, agents, franchises, and independent contractors (“Company’s Parties”), harmless of, from and against any and all claims, liabilities, costs, reasonable attorneys’ fees, losses or expenses, directly or indirectly incurred by Company’s Parties as a result of Advertiser’s or its Agency’s (or their respective owner’s, director’s, employee’s, representative’s or agent’s) default or material breach of this Agreement, grossly negligent acts, willful misconduct, or arising out of any material, creative logos, or content provided by Advertiser or Agency which has not been edited or changed in any way by BBA, including without limitations, claims or suits for libel, copyright or trademark infringement, privacy rights, or any other violations of federal, state, or local law. This provision shall survive expiration or termination of this Agreement.
(b) BBA agrees to indemnify and hold harmless Advertiser, its owners, members, officers, directors, employees, agents, franchises, and independent contractors (“Advertiser’s Parties”) from and against any and all claims, liabilities, costs, attorney’s fees, losses or expenses, directly or indirectly incurred by Advertiser’s Parties as a result of BBA’s (or its owner’s, director’s, employee’s, representative’s or agent’s) (i) negligence, gross negligence or willful misconduct in the performance of our duties and obligations hereunder, (ii) infringement of a third party’s intellectual property rights by BBA or its products and services, (iii) material breach of this Agreement, or (iv) violation of applicable law by BBA.
11. INSURANCE. BBA shall obtain and maintain at its own expense, during the term of this Agreement and for a period of two (2) years thereafter, (i) a standard Commercial General Liability insurance policy with a limit of $1,000,000 per occurrence and in the aggregate, including coverage for products/completed operations and contractual liability coverage, which (1) specifically covers BBA’s contractual liabilities hereunder; and (2) lists Advertiser as additional insured. Coverage limits may be satisfied with a combination of general liability coverage and umbrella liability coverage; (ii) BBA shall also carry statutory Worker’s Compensation Insurance, including Employer’s Liability insurance (in an amount not less than $1,000,000) per accident or employee illness; and (iii) all insurance coverage shall be written with a company or companies having an AM Best rating of A- with a financial size classification of no less than VI, and shall be required to provide Advertiser with at least thirty (30) days prior written notice of any modification, cancellation or exhaustion of limits. BBA shall provide Advertiser with such evidence of coverage as may be reasonably acceptable to Advertiser within ten (10) days following the execution of this Agreement.
12. CONFIDENTIAL INFORMATION. Neither party shall release any non-public information regarding this Agreement (including advertising rates), or such party’s relationship with the other party including without limitation in press releases, promotional or merchandising materials, without the prior consent of the other party.
13. ASSIGNMENT. This Agreement may not be assigned by either party without non-assigning party’s prior written consent, which shall not be unreasonably withheld.
14. FORCE MAJEURE AND LIMITATION ON LIABILIITY.
(a) Neither party shall be considered in default in the performance of its obligation should its performance thereof be delayed or prevented by force majeure. “Force majeure” shall include, but shall not be limited to: hostilities, revolution, riots, strikes, epidemic, accident, fire, flood, earthquake, wind storm, explosion, lack of or failure of transportation facilities or power facilities, regulation or ordinance, any act or requirement of any government or governmental agency having or claiming to have jurisdiction over the subject matter of this Agreement or the parties, any act of God, or any cause, which is reasonably beyond the control and without the fault or negligence of the parties. In addition, in no event shall BBA be liable as the result of any error, delay, or omission beyond BBA’s reasonable control, including without limitation any Force Majeure event.
(b) BBA’s liability, if any, relating to or arising out of the placement of the advertisement in the Magazine or on the Digital Network or any error, delay, or omission relating thereto shall not exceed the amounts actually paid by Advertiser and/or Agency for placing the advertisement. IN NO EVENT SHALL BBA OR ITS AFFILIATES BE RESPONSIBLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, TREBLE, ENHANCED OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS, RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY.
15. RELATIONSHIP OF PARTIES. It is not the intention or the purpose of this Agreement nor shall any provision herein create nor shall the same be construed as creating any type of partnership or joint venture of the parties hereto. This Agreement shall not be construed to provide for or communicate that we have or are attempting to acquire any financial interest, direct or indirect, in Advertiser, Advertiser’s business, or Advertiser’s representative Agency, if one exists. We shall not be deemed to be a representative of Advertiser for any purpose whatsoever except those expressly stated herein. An Advertising Agency may represent and warrant that it is authorized to sign this Agreement and place advertising on behalf of an Advertiser named on the front side of this Agreement and the Advertising Agency may deduct the Agency commission agreed by Advertiser upon payment to us for services subsequently performed by us. Advertiser may change its representative Agency, upon notice to us, and the successive Agency shall be entitled to any commissions from the performance of our services.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties hereto. This Agreement supersedes all prior communications, representations, terms, conditions or agreements, oral or written, between the parties and no waiver or modification to this Agreement shall be effective unless it is in writing, signed by the parties. In the event of a conflict between the provisions of these Standard Terms and Conditions and the provisions of any other insertion order or document provided by Advertiser, the provisions of these Standard Terms and Conditions shall supersede and govern.
17. NOTICES. Any notices to be given under this Agreement shall be deemed adequate if given in writing and sent by certified or registered international mail, by recognized air courier, by electronic mail, or by facsimile transmittal at a fax number known to be maintained by the party to whom notice is to be given, coupled with a copy of the fax confirmation sheet. Notice shall be deemed given when it is received.
(a) This Agreement shall bind and inure to the benefit of each of the parties and their successors, assigns, representatives, and heirs.
(b) This Agreement shall be construed and enforced in accordance with the laws of the State of New York without regard to conflict of law principles. Any action or proceeding arising out of or in connection with this Agreement shall be venued in a federal or state court of appropriate subject matter jurisdiction located in New York, NY and the Parties hereby consent to the personal jurisdiction in such courts. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation will be entitled to recover from the other party all the costs, reasonable attorneys’ fees, and other expenses incurred by such prevailing party in the litigation. If any part of this Agreement is held invalid or unlawful by a court of competent jurisdiction, the remainder of the Agreement shall remain in full force and effect.
(c) No failure by either party to insist upon the strict performance of any term, covenant, agreement or provision of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of any such term, covenant, agreement or provision. No term, covenant, agreement or provision of this Agreement and no breach thereof shall be waived, altered or modified except by a written instrument executed by the parties.