The terms and conditions set forth below shall govern the placement of any advertising content (âAdâ) provided by you (“Advertiser”) to be fulfilled by Touchpoint Markets, Inc. (TM) and its affiliated companies in either print or digital formats on the TM Properties (as defined below). Placement of Ads shall be made in accordance with a fully executed insertion order, work order, or other document agreed to by both TM and Advertiser (“Work Order”). Except as otherwise expressly stated herein, these terms only apply to content as provided to TM by Advertiser and are not intended to cover custom content created in whole or in part by TM.
These general terms and conditions and the Work Order, shall be referred to collectively as the “Agreement.”
The terms and conditions set forth in this Agreement shall govern any placement of Ad materials in any digital or print publication or platform owned and operated by TM (collectively, the âTM Propertiesâ).
The terms and conditions set forth in this Part A shall apply to all Ad placements, as described in all subsequent Parts to this Agreement.
This Agreement is intended to govern both a direct relationship between TM and Advertiser as well as a relationship between TM and an advertising agency listed on an applicable Work Order (âAgencyâ), representing the Advertiser, in which case references to âAdvertiserâ herein shall mean both the Advertiser and the Agency. Unless Advertiser gives TM written direction limiting the authority of Agency, any communication that TM may receive from Agency will be deemed to be given on behalf of, and binding on, Advertiser, and any communication given by TM to Agency will be deemed to have been given to, and will be binding on Advertiser who has designated the undersigned Agency to act on its behalf. In consideration of the mutual promises of each party to the other, Advertiser shall require of TM and TM shall be entitled during the term hereof, to do or arrange for such services for Advertiser.
No Ad will be published unless TM receives a signed Work Order setting out the Ad terms, including, without limitation, start and end dates.
Applicable advertising rates are set forth in the applicable Work Order. TM reserves the right to adjust its advertising rates at any time upon written notice to Advertiser, provided such adjusted rates shall apply only apply to future, not existing, Ad placements. The Advertiser may cancel the Work Order without charge upon receipt of notice of the new rates by providing written notice to TM. If Advertiser fails to cancel a Work Order within thirty
(30) days of notice of a rate change, the Work Order shall remain in full force and effect up to its expiration date set forth in the Work Order at the increased rate
In addition to and without limitation of TMâs rejection rights set forth herein, TM reserves the right to edit, revise, reject or remove any Ad that does not comply with its guidelines, is objectionable for any reason, or which, TMâs sole and reasonable judgment, does not comply with any applicable law, regulation, or other judicial or administrative order. TM may also edit an Ad to distinguish it from editorial content. In addition, TM reserves the right to reject or remove from the TM Properties any Ad, which may bring disparagement,ridicule, or scorn upon TM or any of its affiliates. TM further reserves the right to reject any Ad that is
tendered by an advertiser whose account is delinquent.
The placement contracted for under the Work Order is for the exclusive use and benefit of the Advertiser. It may not be used by or transferred to another advertiser, in whole or in part.
Unless otherwise agreed in writing by the parties, TM will not return any Advertiser property (e.g. artwork, photographs,video and any other files, in any format whatsoever) delivered to TM in connection with this Agreement.TM assumes no responsibility for such Advertiser property and shall not be responsible for any loss or damage in delivery. TM further reserves the right to destroy all such Advertiser property, which has been in its custody for three (3) months.
Any publication errors or errors of omission shall not be
considered a breach of a Work Order or this Agreement. Advertiser agrees to promptly notify TM upon becoming aware of any errors for correction by the applicable deadlines set forth in the Work Order.
TM will not, in any event, be responsible for any errors, omissions or failure to execute an Ad.
Advertiserâs sole remedy for failure to execute an Ad in accordance with the Work Order or for an error in any Ad that has been executed shall be limited to a make good order of equal or lesser value in the same TM Property as soon as commercially practicable.
Advertiser shall be responsible for all taxes (other than TMâs income taxes) imposed as a result of any advertising published under the Work Order
Advertiser assumes all responsibility for compliance with applicable industry laws, rules, and regulations in the relevant jurisdiction(s), including without limitation, any attorney advertising rules or regulations. TM is not responsible for any violation of any such rules or regulations, or filing of any Ad with any bar association or other entity, or any associated fees. TM will not hold materials’ deadlines pending advertiser’s submission of copy to any such entity and any failure to timely deliver advertising materials by applicable deadlines set forth in a Work Order may be subject to penalty
All payments shall be made payable to “Touchpoint Markets, Inc.” (“TM”). Unless alternate payment terms are expressly approved in writing by TM and incorporated into the applicable Work Order, TMâs standard payment terms are net thirty (30) days from the date of invoice. Advertiser waives the right to dispute any item reflected on an invoice unless such dispute is submitted to TM in writing within thirty (30) days from the invoice date.
TM reserves the right to terminate this Agreement or any applicable Work Order in the event Advertiser is more than ninety (90) days delinquent in payment of any undisputed amounts due, provided that TM gives Advertiser not less than thirty (30) daysâ prior written notice (email sufficient) of such delinquency
Advertiser shall be liable for any and all reasonable costs of collection incurred by TM, including attorneysâ fees and court costs. The right to recover collection costs is in addition to, and not in lieu of, TMâs rights to suspend performance or terminate this Agreement or any applicable Work Order due to nonpayment.
Advertiser shall be liable for any and all reasonable costs of collection incurred by TM, including attorneysâ fees and court costs. The right to recover collection costs is in addition to, and not in lieu of, TMâs rights to suspend performance or terminate this Agreement or any applicable Work Order due to nonpayment.
TM does not accept sequential liability under any circumstances. Any alternate payment terms must be approved in writing by TM and, if approved, shall be
expressly included in the applicable Work Order.
Advertiser expressly acknowledges that TM may represent other advertisers and/or agencies and may secure the placement and exhibition of advertising, in a similar capacity to that contemplated hereunder, and nothing contained herein shall be construed to limit TMâs right to do so.
Each party represents and warrants to the other that: (i) it is an entity in good standing; and (ii) it has the necessary authority and ability to enter into and perform all of its obligations under this Agreement and will perform such obligations in a professional manner.
Advertiser hereby represents and warrants that:
a. Use of all or any portion of the Ads will not infringe on (i) any copyright or moral right; or (ii) trademark or other intellectual property right and will not violate any right of privacy or right of publicity; and (iii) all necessary model and/or property releases for use of the Ads have been obtained. Advertiser shall be responsible for payment of any amounts that may be due under, and compliance with any other terms of, any applicable collective bargaining agreement(s) (such as Screen Actors Guild in the US);
b. No claim has been made that Advertiser does not have any necessary right to effectuate the purposes of the Agreement hereunder; and
c. No portion of the Ad is pornographic, defamatory or otherwise unlawful and the Ad complies with any applicable regulations and/or industry codes.
Advertiser acknowledges and agrees that all Ads are accepted and published by TM upon the representation by the Advertiser that they are authorized to publish the entire contents and subject matter thereof in all print and electronic versions (including without limitation electronic versions of TMâs publications distributed via digital newsstand services and iPad and smart phone applications) and that any such publication by TM will not violate any law or infringe upon any right of any party. In consideration of the publication of the Ads, the Advertiser will defend, indemnify and hold TM and its parent, subsidiaries, commonly owned or controlled affiliates, and their respective officers, directors and employees harmless from and against any and all losses and expenses (including, without limitation, attorneyâs fees) (collectively, âLossesâ) arising out of the publication of the Ad, including without limitation those arising from third party claims, suits, judgment or proceeding (collectively, âClaimsâ) for infringement of applicable laws, rules or regulations, defamation, copyright or trademark infringement, misappropriation, violation of the Lanham Act or rights of privacy or publicity, or from any and all claims not now known or hereafter devised or created (collectively, âClaimsâ). In the event TM has agreed to provide contest or sweepstakes management services, advertorials or custom advertisements, email design or distribution or other promotional services in connection with an advertising commitment by Advertiser, all such services are performed upon the warranty that the Advertiser will indemnify, defend and hold TM harmless form and against any and all Losses arising out of the publication, use or distribution of any materials, products (including without limitation, prizes) or services provided by or on behalf of the Advertiser, its agents and employees, including without limitation those arising from any Claims.
If this Agreement is entered into between TM and Agency, then: (a) Agency represents and warrants that it has the authority as Advertiserâs agent to bind Advertiser to this Agreement and each Work Order, and that all of Agencyâs actions or inactions related to this Agreement and each Work Order will be within the scope of such agency; (b) Agency will defend, indemnify, and hold TM and its parent, subsidiaries, commonly owned or controlled affiliates, and their respective officers, directors and employees harmless from Losses resulting from Agencyâs alleged breach of the foregoing sentence; and (c) all payment obligations under Work Orders and the indemnification obligations set forth in Section 15 (Indemnification) shall be the joint and several liability of Advertiser and Agency.
Advertiser agrees that TM shall not be liable for (i) any delays in the delivery and/or non-delivery of any Ad placement; (ii) anything affecting the production of an Adâs placement in the event of an act of God, action by any government entity, network difficulties, electronic malfunction or any condition beyond the control of TM; (iii) consequential damages of any nature whatsoever; and/or (iv) errors or omissions in the Ad as it is exhibited to the public.
In the event of any dispute arising out of or relating to this Agreement, Advertiser’s sole remedy shall be an action for damages at law. Advertiser expressly waives any and all equitable rights they may have hereunder, including without limitation any right to enjoin, rescind, terminate or otherwise interfere with TMâs delivery, placement and exhibition of any Advertising whatsoever.
Unless otherwise agreed by both parties, TM makes no representations regarding the results to be achieved by a given Ad and TM does not guarantee a specific level of results with respect to such Ad, including, without limitation, a given level of circulation, readership or interaction with an Ad.
The parties agree that this Agreement will be construed in all respects in accordance with the laws of the State of New York applicable to agreements entered into and to be wholly performed therein, and, in the event of any dispute related to the subject matter of this Agreement, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts located in the State of New York, New York County.
Except as otherwise provided herein, all notices and approvals desired or required to be given to either party hereunder shall be in writing and shall be deemed given when delivered via (i) certified mail, return receipt requested, all charges prepaid, (ii) Federal Express, UPS One-Day Service, or other similar overnight courier service, with proof of sending, or (iii) hand delivery, with acknowledgement of receipt, transmission, in each case to the other party’s address set forth in the Work Order.
Neither party may assign this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent of the other in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of its assets. Any attempt to assign this Agreement other than as permitted herein will be null and void. Without limiting the foregoing, this Agreement will inure to the benefit of and bind the parties’ respective successors and permitted assigns.
If any term or provision of this Agreement is declared illegal, invalid or unenforceable, the parties intend that the remainder of this Agreement shall not be affected thereby and that, in lieu of any such stricken provision, there shall be added as a part hereof, a substitute provision as similar in substance to the illegal, invalid or unenforceable term or provision as may be possible.
Nothing contained in this Agreement shall be construed to constitute a partnership or joint venture or any other fiduciary relationship. Neither party is the employee, agent, partner or joint venture of the other, it being understood and agreed that the relationship of the parties is that of independent contractors.
No waiver by either party of any default hereunder shall constitute a waiver by such party of any subsequent default, whether such subsequent default is similar in nature to any previously waived default. All remedies under this Agreement or under law or otherwise shall be cumulative and not alternative.
Other than for payment obligations, neither party’s delay or failure to perform or enforce any provision of this Agreement, as result of circumstances beyond its reasonable control (including, without limitation, war, strikes, floods, governmental restrictions, power, telecommunications or Internet failures, or damage to or destruction of any network facilities) shall be deemed to be, or to give rise to, a breach of this Agreement.
This Agreement and the applicable Work Orders are intended by the parties hereto as a complete and final expression of their agreement and understanding with respect to the subject matter hereof. This Agreement may not be changed or modified, or any covenant or provision hereof waived, except by an agreement in writing, signed by the party against whom enforcement of the change, modification or waiver is sought, and not otherwise.
This Agreement and the applicable Work Orders are intended by the parties hereto as a complete and final expression of their agreement and understanding with respect to the subject matter hereof. This Agreement may not be changed or modified, or any covenant or provision hereof waived, except by an agreement in writing, signed by the party against whom enforcement of the change, modification or waiver is sought, and not otherwise.
TM is a member of the International Advertising Bureau (âIABâ), which evaluates, recommends, and sets standards and practices on all aspects of interactive advertising. By signing this Agreement, you are agreeing to the standard IAB Standard Terms & Conditions for Interactive Advertising Version 3.0, which can be found at the following link: IAB Terms & Conditions 3.0 with the following amendments:
a. Section XIV (d) shall reference New York as the governing law and jurisdiction.
b. Notwithstanding anything to the contrary in the IAB Terms, if an Agency is not used as an agent for Advertiser in connection with this Agreement, then the Advertiser will be deemed both the âAgencyâ and âAdvertiserâ for purposes of the IAB Terms. For clarification, the IAB Terms shall govern both a direct relationship between TM and Advertiser as well as a relationship between TM and an Agency.
c. The first and fourth paragraph in Section III(c) shall be deleted in its entirety.
d. Section IV(a) shall be deleted in its entirety.
e. The Second sentence in Section IV(b) shall be amended by (c) replacing the words âbroken out by dayâ with âbroken out by monthâ and (y) removing the words âspend/cost, and other variables as may be defined in the IO (e.g., keywords)â at the end thereof.
f. Section (VI)(a) shall be deleted in its entirety and replaced with the following: âNotification of Under-delivery. Media Company will monitor delivery of the Ads, and will use commercially reasonable efforts to notify Agency either electronically or in writing as soon as possible (and no later than 5 business days before the end of the applicable campaign, unless the length of the campaign is less than 5 business days) if Media Company believes that an underdelivery is likely. In the case of a probable or actual under-delivery, Agency and Media Company may arrange for a makegood consistent with these Terms.â
In addition to the terms and conditions set forth in Part A, the terms and conditions set forth in this Part C shall apply to webcasts that are wholly provided by Advertiser (âAdvertiser Webcastsâ) or created by TM but sponsored by Advertiser (âSponsored Editorial Webcastsâ), as specified in the Work Order. In the event of any conflict or inconsistency between the terms and conditions in Part A and this Part, the terms and conditions in this Part shall govern.
Except to the extent specified otherwise in a Work Order, all aspects of Advertiser Webcasts, including but not limited to topic, content, and panelist recruitment, are developed and managed at the sole discretion of Advertiser and are the sole responsibility of Advertiser. Advertiser Webcasts are created by and remain the property of Advertiser. Advertiser grants TM a perpetual, fully paid, royalty-free, worldwide license to use the Advertiser Webcast in any and all media.
All aspects of Sponsored Editorial Webcasts, including, but not limited to, topic, content, and panelist recruitment, are developed and managed at the sole discretion of TM. Sponsored Editorial Webcasts are created by TM and remain the property of TM (unless otherwise expressly stated in the Work Order).
The Ads governed by this Part are non-cancellable, unless otherwise stated in a Work Order. Notwithstanding the foregoing, Advertiser acknowledges and agrees that time is of the essence with respect to delivery of materials and if Advertiser does not deliver any required materials by applicable deadlines specified by TM, then Advertiser shall be responsible for 100% of the total fee. Furthermore, if Advertiser changes the date for any Ad (including any Advertiser Webcast) less than thirty (30) days prior to the scheduled date for such Ad (or Advertiser Webcast) as set forth in the applicable Work Order, then Advertiser shall pay to TM, in addition to the fees for such Ad (or Advertiser Webcast) as set forth in the applicable Work Order, an additional amount equal to twenty-five percent (25%) of such fees. Advertiser shall be allowed to change the date for an Ad one time without penalty as long as Advertiser notifies TM in writing of such date change not less than eight (8) weeks prior to the scheduled date for such Ad.
Upon prior written request from Advertiser, to be delivered to TM at least four business days prior to the applicable distribution date of the Ad, TM agrees to provide Advertiser with one opportunity to review the Ad for any errors or omissions prior to its publication. TM agrees to accommodate all reasonable correction requests, provided that, once approved by both parties, no further changes will be made.
In addition to the terms and conditions set forth in Part A, the terms and conditions set forth in this Part D shall only apply to Ads placements in the TM Properties which are intended to generate certain results, as specified in the Work Order (âLead Gen Adsâ). In the event of any conflict or inconsistency between the terms and conditions in Part A and this Part, the terms and conditions in this Part shall govern.
TM does not guarantee a specific level of results or leads generated by a given Ad and makes no representations regarding the effectiveness of such Ad for the ClickStart Program.
Tailored and Intent Activate Lead Generation programs may deliver sooner than the date of the Insertion Order flight dates or may require continuation past the end date of the Insertion Order until guaranteed delivery is completed.
The Ads governed by this Part are non-cancellable, unless otherwise stated in a Work Order. Notwithstanding the foregoing, Advertiser acknowledges and agrees that time is of the essence with respect to delivery of materials and if Advertiser does not deliver any required materials by applicable deadlines specified by TM, then Advertiser shall be responsible for 100% of the total fee.
Upon prior written request from Advertiser, to be delivered to TM at least four business days prior to the applicable distribution date of the Ad, TM agrees to provide Advertiser with one opportunity to review the Ad for any errors or omissions prior to its publication. TM agrees to accommodate all reasonable correction requests, provided that, once approved by both parties, no further changes will be made.
If the Advertiser changes the flight/campaign date past the flight date on the insertion order, the Advertiser has the ability to make one date change without penalty, provided the Advertiser notifies TM in writing in advance within 30 days of the go-live date.
If the Advertiser requests more than one flight date change due to delays in Advertiser readiness, the Advertiser shall pay TM a fee for such delays equal to thirty (30%) of the total Lead Generation Program. TM is not responsible for delivering the guaranteed lead number when the start of the flight is delayed due to the Advertiser.
In addition to the terms and conditions set forth in Part A, the terms and conditions set forth in this Part E shall apply to Ads that constitute “Native Advertising,” as well as content offered using TM’s Service, accessed at As used herein, (i) “Native Advertising” means Ads created wholly by Advertiser, to enable TM to run such Ad in a contextually and “native” context on behalf of Advertiser, within the TM Properties” means content displayed by Advertiser using TM’s Service for Part A and this Part, the defined term “Ads”. In the event of any conflict or inconsistency between the terms and conditions in Part A and this Part, the terms and conditions in this Part shall govern.
TM shall use commercially reasonable efforts to ensure that Native Advertising is conspicuously and proximately labeled or identified to viewers as sponsored material or (in the case of Native Advertising only) advertising copy by TM’s native advertising guidelines, however TM provides no representations or warranties as to the accuracy, applicability or sufficiency of the disclosures. It is the Advertiser’s responsibility to notify TM in writing if it believes TM has failed to make any necessary disclosures, and TM shall promptly work with the Advertiser to display the appropriate disclosures.
The Ads governed by this Part are non-cancellable, unless otherwise stated in a Work Order. Notwithstanding the foregoing, Advertiser acknowledges and agrees that time is of the essence with respect to delivery of materials, and if Advertiser does not deliver any required materials by applicable deadlines specified by TM, then Advertiser shall be responsible for 100% of the total fee.
Upon prior written request from Advertiser, to be delivered to TM at least four business days before the applicable distribution date of the Ad, TM agrees to provide Advertiser with one opportunity to review the Ad for any errors or omissions before its publication. TM agrees to accommodate all reasonable correction requests, provided that, once approved by both parties, no further changes will be made.
In addition to the terms and conditions set forth in Part A, the terms and conditions set forth in this Part F shall apply to Ads delivered by TM on behalf of Advertiser via email, as specified in the Work Order. In the event of any conflict or inconsistency between the terms and conditions in Part A and this Part, the terms and conditions in this Part shall govern.
Advertiser shall be responsible for providing TM with a complete and accurate file containing all opt-out emails maintained by Advertiser. Advertiser shall defend, indemnify and hold TM harmless from and against any and Losses arising out of the email distribution of the Ad.
The Ads governed by this Part are non-cancellable unless otherwise stated in a Work Order. Notwithstanding the foregoing, Advertiser acknowledges and agrees that time is of the essence with respect to delivery of materials, and if Advertiser does not deliver any required materials by applicable deadlines specified by TM, then Advertiser shall be responsible for 100% of the total fee.
Upon prior written request from Advertiser, to be delivered to TM at least four business days prior to the applicable distribution date of the Ad, TM agrees to provide Advertiser with one opportunity to review the Ad for any errors or omissions prior to its publication. TM agrees to accommodate all reasonable correction requests, provided that, once approved by both parties, no further changes will be made.
Subject to the terms of the applicable Work Order and payment of the agreed license fee, Touchpoint Markets, Inc. (“TM”) grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the licensed deliverables (“Deliverables”) solely for the purpose and duration specified in the Work Order. All rights not expressly granted are reserved by TM.
All content, logos, trademarks, data, and materials provided by TM remain the exclusive property of TM. No ownership or copyright interest is transferred to Licensee under this Agreement. Licensee shall not alter, obscure, or remove any copyright, trademark, or attribution notices appearing on or in connection with the Deliverables.
Licensee shall not:
Where required, Licensee agrees to include the following credit line when using Deliverables: “Reprinted with permission. © [Year] Touchpoint Markets, Inc. All Rights Reserved.” Alternative credit language must be approved in writing by TM.
TM will deliver the Deliverables in accordance with the specifications set forth in the applicable Work Order. Licensee’s use of Deliverables does not constitute or imply endorsement by TM unless explicitly agreed to in writing.
For the avoidance of doubt, this Asset Usage, Logo & Licensing section shall only apply where the applicable Work Order expressly includes the licensing or usage of Deliverables such as logos, editorial assets, or branded content. In the absence of such provisions, this Section shall be deemed inapplicable and shall have no force or effect with respect to the relevant Work Order.
The license term begins on the effective date listed in the Work Order and continues until expiration or termination. TM may terminate the license immediately upon material breach by Licensee, including non-payment or misuse of Deliverables. Upon termination or expiration, Licensee must cease all use and delete all copies of the Deliverables from its systems.
All fees are due net thirty (30) days from the invoice date unless alternative terms are expressly approved in writing by TM and reflected in the Work Order. Licensee shall be responsible for all applicable taxes. Non-payment may result in suspension or termination of access to Deliverables.
TM represents that it has the right to license the Deliverables provided. Except as expressly stated herein, the Deliverables are provided “as is” without warranty of any kind. TM disclaims all implied warranties and shall not be liable for indirect, incidental, or consequential damages. TM’s total liability shall not exceed the fees actually paid by Licensee under the applicable Work Order.