Terms of Use
The terms and conditions set forth below apply to all advertising displayed on WhatsUpMonterey.com website currently located at www.whatsupmonterey (“Website”) and on each Publisher’s related mobile applications and/or digital microsites (collectively, “Apps”) and/or on each Publisher’s other media/platforms.
1. Orders for all advertising on the Website, Apps and/or otherwise are non-refundable.
2. Advertisers shall pay for such advertising at the rates set forth in this Agreement (if specified herein) or Publisher’s rate card applicable at the time of the publication of the advertising. Volume discounts are net rates. No other discounts apply.
3. Payment for advertising shall be made in accordance with the credit terms granted Advertiser as shown on invoice. Payment for advertising shall be made on or before the 30th day of the month following that in which advertising is published. All advertising production fees (if any) shall be billed separately and are immediately due in full within the first month of the ad campaign. Failure of Advertiser to comply with this requirement shall, at the option of Publisher, be considered a breach of this Agreement. If any bill is not paid by its due date, Publisher may, at its option, disable all advertising and listings and / or otherwise change the payment terms at any time.
4. This Agreement is not subject to rebates.
5. Publisher reserves the right, at its absolute discretion and at any time, to cancel any advertising or reject any advertising copy, whether or not the same has already been acknowledged and/or previously Published, including but not limited to for reasons relating to the contents of the advertisement or any technology associated with the advertisement. In the event of such cancellation or rejection by Publisher, advertising already run shall be paid for at the rate that would apply if the entire order were Published and no short rate will apply. The rejection of copy by the Publisher shall require Advertiser to supply new copy acceptable to the Publisher.
6. Publisher, at its option, may terminate this Agreement for the breach of any of the terms hereof, it being specifically understood without limitation that failure on the part of Advertiser to pay each bill on or before its due date shall constitute a breach. Should Publisher terminate this Agreement, all charges incurred together with short?rate charges shall be immediately due and payable. Furthermore, in the event Advertiser breaches this Agreement, Publisher may decide to exercise its right to refuse to publish any or all of Advertiser’s advertising.
7. Any bill tendered by Publisher shall be conclusive as to the correctness of the item or items therein set forth and shall constitute an account stated unless written objection is made thereto within ten days from the rendering thereof. In addition, unless otherwise agreed by Publisher in writing, all impressions and/or other measurements of ads hereunder shall be solely based on Publisher’s calculations.
8. This Agreement may not be assigned by Advertiser without the prior written consent of Publisher, and any assignment without such consent shall be null and void. Advertiser may not use any space for the advertisement either directly or indirectly of any business organization, enterprise, product, or service other than that for which the advertising space is provided by Publisher, nor may Advertiser authorize any others to use any advertising space.
9. Orders containing terms, rates or conditions or specifying positions, locations, editorial adjacencies or other requirements may be accepted but such terms, rates, conditions or specifications are not binding unless Publisher has specifically agreed to them in writing.
10. In the event of a suspension of publication of the Website and/or Apps due to strike, accident, fire, flood, computer or software/network malfunction, congestion, repair, Internet outages or any other cause or contingencies beyond the control of Publisher, it is understood and agreed that such suspension shall not invalidate this contract, but a) will give Publisher the option to cancel this Agreement, or if Publisher does not do so, b) upon resumption of publication this contract shall be continued and no liability for damages shall be incurred by the Publisher by reason of such suspension.
11. Interest will accrue at a rate of one and one-half percent (1.5%) per month (or such other maximum amount as is permissible by law) on all past due balances. If it becomes necessary to place with an attorney for collection any claim for funds due under the terms of this Agreement, then Advertiser agree to pay to Publisher the reasonable attorneys’ fees arising from such collection.
12. If during the period of this Agreement Publisher revises its advertising rates, Advertiser agree to be bound by such rates provided Publisher gives at least thirty (30) days notice of such increase. However, in such event Advertiser may elect not to place any further advertisements after the effective date of the increase, and if no space is used after the effective date of the increase, no short rate will be charged on space used prior to such increase.
13. Publisher does not guarantee any given level of circulation or readership. In addition, Publisher makes no guarantee or representation as to the quantity and quality of visits, impressions, circulation, or other usage of its Website or Apps or of the advertisement, or as to the use of any particular tracking or information-gathering devices, unless Publisher expressly agrees otherwise in writing. In addition, all impressions and/or other measurements of advertisements for the Websites and Apps shall be based solely on Publisher’s calculations for its Websites and Apps. To the extent Publisher fails to provide Advertiser with any guaranteed impressions on its Website or Apps (if expressly agreed to by Publisher in writing), Publisher will provide as a sole remedy a makegood, by extending the order beyond the contracted advertising flight period until the remainder of the guaranteed impressions are delivered. For the purpose of clarification, Advertisers that request a special billing schedule or an upfront bill will not receive refunds/adjustments in the case of under delivery of guaranteed impressions (if applicable).
14. Publisher’s sole liability (and Advertiser’s sole remedy) for errors and/or omissions by Publisher in published advertisements (including, but not limited to, failure to publish an advertisement) shall be to provide Advertiser a credit for the actual space of the error or omission (in no event shall such credit exceed the total amount paid to Publisher for the applicable advertisement), and Publisher shall have no liability unless the error or omission is brought to Publisher’s attention no later than 5 working days after the advertisement is first Published. However, if a copy of the advertisement was provided to or reviewed by Advertiser, Publisher shall have no liability. IN NO EVENT SHALL PUBLISHER BE LIABLE TO ADVERTISER, AGENCY OR ANY OTHER PARTIES FOR ANY ADVERTISING CREATIVE OR PRINTING COSTS, ADMINISTRATIVE COSTS, CONSEQUENTIAL DAMAGES AND/OR ANY FURTHER DAMAGES OF ANY KIND ARISING FROM THIS AGREEMENT OR ANY BREACH THEREOF, INCLUDING BUT NOT LIMITED TO INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES OR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE.
15. Failure by Publisher to enforce any provision of this Agreement shall not be considered a waiver of such provision. Unless inconsistent with the express terms of this Agreement, all orders are subject to the terms of Publisher’s applicable rate card. Advertiser acknowledge receipt of a copy of said rate card.
16. Advertiser recognize that the copyright in any advertisements created by Publisher is owned by Publisher. Advertiser shall not use any advertisements created by Publisher hereunder for any other purpose, including but not limited to, in any other publication, website and/or on any other platform without Publisher’s prior written approval in each instance. As to all other advertisements, Advertiser agree that Publisher has the non-exclusive right, for the full term of copyright, by itself or through third parties, to republish, retransmit, re-perform, redistribute or otherwise re-use any advertisements submitted hereunder in any form in which the advertisements may be Published or used (in any media now in existence or hereafter developed) in whole or in any part, whether or not combined with material of others. The Advertiser acknowledges and agrees that any material submitted by Advertiser may be included in an electronic database of published pages from the Website and Apps and are acceptable as proof of publication for the purpose of payment of invoices.
17. This Agreement will be construed in accordance with the laws of the state of California. Any action based on or alleging a breach of this Agreement must be commenced in a state or federal court in Monterey, California; and the parties hereby consent to the exclusive jurisdiction of such courts in connection with this Agreement.
18. Advertiser understand that advertisements and/or other commercial messages sent on its behalf by Publisher via electronic mail may be governed by federal, state and local laws, rules and regulations, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and any acts related thereto, and including the interpretation thereof by the FTC or other governmental authorities (collectively, the “CAN-SPAM Act”) and state “Do Not E-mail” registries. Advertiser agree to comply with all such applicable laws, rules and regulations. Without limiting the generality of the foregoing, Advertiser shall fulfill all obligations of a “Sender” as defined in the CAN-SPAM Act, and comply with Publisher’s policies intended to comply therewith.
19. All data collected by Publisher, Advertiser and/or any third party in connection with this Agreement shall be exclusively owned by Publisher, and not used or disclosed by Advertiser without Publisher’s prior written approval in each instance.
20. The titles and logos of the Website and Apps are registered trademarks and/or trademarks protected under common laws. Neither the titles nor the logos may be used without the express written permission of Publisher.
21. This Agreement may be executed by Advertiser by manual, facsimile or scanned PDF signatures (or by clicking “accept” or similar terminology online), and in any number of counterparts, each of which will be deemed an original and all which together will constitute one and the same instrument.
22. PUBLISHER DISCLAIMS ALL WARRANTIES AND/OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES FOR NONINFRINGEMENT, ACCURACY, AVAILABILITY, UPTIME, MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE IN CONNECTION WITH THE DISPLAY, PERFORMANCE AND TRANSMISSION OF ADVERTISEMENTS IN THE NEWSPAPERS, WEBSITES AND APPS. Advertiser acknowledge that third parties other than Publisher may generate automated, fraudulent or otherwise invalid/improper impressions, conversions, inquiries, clicks or other actions on Advertiser’s advertisements displayed on the Websites and/or Apps. As between Advertiser and Publisher, Advertiser accepts the risk of any such improper actions. Advertiser’s exclusive remedy for such suspected improper actions is for Advertiser to request a refund relating to its impacted advertisements in the form of advertising credits on the applicable Website or App within thirty (30) days from the end of the calendar month in which such advertisement is initially displayed on the applicable Website or App. Any advertising credit refunds in connection with the Advertiser’s aforementioned requests are within the sole discretion of Publisher.
23. To the extent Advertiser collects or obtains data from the Website and/or App, whether collected or received via an advertising unit, widget, pixel tag, cookie, clear gif, HTML, web beacon, script or other data collection process, including without limitation “clickstream” or “traffic pattern” data, or data that otherwise relates to usage of the applicable Website, App, user behavior and/or analytics, Advertiser is subject to the then-current version of Publisher’s Third Party Data Collection Policy, which is incorporated herein by reference (a copy of which is available upon request and located at the following URL: http://www.whatsupmonterey.com/privacy-policy.html). In addition, to the extent Advertiser provides any such data, or any names, postal addresses, email addresses, telephone numbers or other personally identifiable data to Publisher for any purpose, Advertiser represents and warrants that it has all rights, consents and permission necessary to transfer such data, and for Publisher to use such data, for the purposes contemplated by the parties.
24. The foregoing terms shall govern the relationship between Publisher and Advertiser. Publisher has not made any representations to Advertiser that are not contained herein. Unless expressly agreed to in writing signed by an officer or senior executive of Publisher, no other terms and conditions in insertion orders, contracts, click-through terms and conditions, copy instruction, letters, or otherwise will be binding on Publisher.
