General Terms and Conditions
These General Terms and Conditions shall be incorporated into each Sales Order, and will govern each party’s rights and obligations. This Agreement, consisting of the Sales Order and General Terms and Conditions is made by and between the Client named in the Sales Order, and Alpha Brand Media, Inc., a Delaware corporation, (“ABM”), which is the publisher and operator of the Search Engine Journal website (the “SEJ Website”).
(1) Authorizations for Promotional Displays. Client authorizes ABM to prepare, insert and display the cover stories, advertorials, sponsorships, promotional graphics, links and/or banner advertisements as specified in the Sales Order (the “Promotional Displays“) produced from advertising content provided by Client (“Client Content“) which conforms to the specifications in this Agreement. In that regard, Client agrees that ABM has the right to market, display, perform, transmit and promote the Promotional Displays on the agreed upon Website according to the specifications stated in the Agreement. ABM will use commercially reasonable efforts to ensure that the Promotional Displays substantially conform to the specifications set forth herein. However, ABM reserves the right to change the overall format of the Promotional Displays upon notice to Client. If specified in the Sales Order, the term Website shall also include ABM’s social media channels (i.e. www.youtube.com, www.linkedin.com, www.facebook.com, www.twitter.com, etc.) where the Promotional Displays may be displayed as specified in the Sales Order. Except as otherwise expressly provided in the Sales Order, the positioning of Promotional Displays on the SEJ Website shall be within ABM’s sole and absolute discretion.
(2) Emails and Sponsorship Deliverables. The following terms and conditions apply to the following specialty deliverables in the Sales Order:
(i) Emails. Unless otherwise specified, an “Email” identified in a Sales Order entitles Client to advertising placement on a newsletter sent to the subscribers of the SEJ Website who have opted-in to receive Email communications from ABM. Unless otherwise specified in a Sales Order, Emails will be sent to the total number of subscribers who have opted-in to receive the newsletters. Aside from the Client’s advertising placement, content of the Email is exclusively determined by ABM.
(ii) Sponsorships. Unless otherwise specified, a “Sponsorship” identified in a Sales Order entitles the Client to a non-exclusive advertising placement on the page or pages and of the size and type identified in such Sales Order. If a Sponsorship is designated a fixed placement, any impressions listed in the Sales Order with regard to such placement are necessarily estimates.
(3) Furnishing of Client Content. The Client will provide all Client Content to ABM as specified in the Sales Order as necessary for ABM to prepare the Promotional Displays, such as advertising buttons, badges, banners, logos, or text links described in the Sales Order (each, together with any hyperlinks, text, musical works, sound recordings, videos and other audiovisual material, pictures, graphics, logos and any other content, data or subject matter incorporated therein.) Client agrees to provide the Client Content in the format requested by ABM. ABM shall not be required to publish any Client Content that is not received in accordance with such policy and applicable ad specifications, and Client shall be obligated to pay the amounts due in the Sales Order, whether or not such Promotional Display is published if such failure to publish is due to a failure by the Client to timely provide the Client Content. Furthermore, any advertising campaign delivery dates that are specified in a Sales Order is conditioned on the timely and complete delivery of the Client Content to ABM, and are subject to change based on when the Client Content is furnished to ABM, and availability of resources. Client may not claim a breach, terminate or cancel this Agreement if (a) any advertising copy is incorrect or contains errors of any kind after the Client has had an opportunity to review and proof such advertising copy, or (b) there are any delays in the commencement for any advertising campaign delivery dates caused by the Client’s failure to either provide the Client Content to ABM on a timely basis or to provide such Client Content in the format requested by ABM; nor is ABM liable to Client for any loss or damage that results from the foregoing subsections (a) and (b).
(4) Compliance with Website Advertising Standards. ABM reserves the right to reject Client Content that is not consistent with ABM’s standards. In addition, ABM shall have the right, at any time, to remove any Client Content or Promotional Displays and/or terminate this Agreement if ABM is directed to do so by any law enforcement agency, court or government agency or if ABM determines, in its sole discretion, that the Client Content, Promotional Displays, or any portion thereof (i) violate ABM’s or the Website’s then applicable advertising policy; (ii) violate any law, rule or regulation, including those regarding unfair competition, anti-discrimination or false advertising; (iii) do not infringe or misappropriate any intellectual property (including, without limitation, trademarks and copyrights), confidentiality, publicity or privacy rights of any third party in any jurisdiction; or (iv) are otherwise objectionable to ABM or the Website owner. In such an event, Client’s sole remedy shall be that ABM will display other Client Content or Promotional displays as mutually agreed upon by the parties. ABM may terminate this Agreement at any time in the event of material breach of this Agreement by Client.
(5) Client’s Warranties. Client is solely responsible for any legal liability arising out of or relating to the Client Content and/or the Promotional Displays. Client represents and warrants that (i) the Client Content complies with ABM’s advertising standards; (ii) Client holds the necessary rights to permit the use of Client Content and the display of Promotional Displays by ABM for the purposes of this Agreement; (iii) the use, reproduction, distribution, or transmission of Client Content and the display of Promotional Displays will not violate any civil or criminal laws, rules or regulations or any rights of any third parties including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, right of publicity, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity; (iv) neither the Client Content nor the Promotional Displays shall advertise or enable the unlawful sale of alcohol or tobacco products or any unlawful gambling activity; and (v) Client Content complies with all laws, rules and regulations of the country, state, or territory in which the Client or the Website Owner is located. Client agrees to indemnify; defend, ABM and to hold ABM harmless from any and all liability, loss, damages, claims, or causes of action, including reasonable legal fees and expenses that may be incurred by ABM, arising out of or related to the Client Content, Promotional Displays, or Client’s breach of any of the foregoing representations and warranties.
(6) Limited License Grant. Client hereby grants to ABM a non-exclusive, royalty-free, right and license to use the Client Content, including any of Client’s trademarks and trade names for the sole purpose of performing its obligations hereunder.
(7) Term and Termination.
(i) This Agreement will commence as of the Start Date indicated in the Sales Order, and will continue until the (a) expiration date, if indicated in the Sales Order, or (b) the date such Sales Order is completed by ABM. Client understands that once this Agreement is executed, there shall be no refunds, right to set-off against any future amounts payable to ABM, or proration of rates or installment payments if Client elects to discontinue display of the Promotional Displays or any of the promotional activities to be performed by ABM before the expiration of this Agreement. Notwithstanding the foregoing, ABM may terminate this Agreement if Client fails to pay any amount due hereunder and such non-payment remains uncured for 5 days following notice to Client of non-payment. Likewise, Client may terminate this Agreement if ABM fails to cure any material breach of the Agreement, and such material breach remains uncured for 20 days following notice to ABM of the breach.
(ii) Additional Terms for Advertising Campaigns. If an advertising campaign is specified in a Sales Order, Client may request a rescheduling of advertising campaigns as long as such requests are made in writing at least 90 days in advance of the delivery date, and subject to ABM’s written approval, at its sole discretion. Client shall not be entitled to any refunds if ABM is unable to accept Client’s requests to reschedule an advertising campaign. Client agrees to complete any advertising campaign within twelve (12) months of the Start Date, and under no circumstances may an advertising campaign be extended beyond twelve (12) months of the Start Date. If Client fails to complete the campaign within those twelve (12) months, then ABM reserves the right to terminate the Sales Order for that advertising campaign without refund, or any right to set-off against any future amounts payable to ABM. In addition, ABM reserves the right to adjust the advertising campaign delivery dates based upon available inventory following notice to the Client.
(8) Disclaimer of Liability. UNDER NO CIRCUMSTANCES SHALL ABM BE LIABLE TO THE CLIENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY SALES ORDER OR ANY PERFORMANCE BY ABM UNDER THIS AGREEMENT. ABM SHALL IN NO EVENT BE LIABLE TO CLIENT FOR MORE THAN THE TOTAL AMOUNT PAID TO ABM BY CLIENT HEREUNDER. ABM MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ABM’S SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ABM SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE NUMBER OF PERSONS WHO WILL ACCESS THE PROMOTIONAL DISPLAYS (AND OTHER ABM PROMOTIONAL SERVICES), AND ANY BENEFIT CLIENT MIGHT OBTAIN FROM THE SERVICES RENDERED BY ABM.
(9) Late Fees: If any payment due under a Sales Order is not received by the due date, a finance charge of 1.5% per month shall be applied to the outstanding balance until paid in full.
(10) Notice. All notices and other communications between the parties to this instrument shall be deemed given:
(i) If addressed to the appropriate address appearing on the face of the Sales Order, or if notice to a different address has been given in accordance with this Section 10, then to that address; and,
(ii) If delivered by electronic mail, when the sender has received confirmation of delivery to the addressee; if delivered by facsimile transmission, when the sender has received confirmation of delivery to the addressee; if delivered by personal delivery, when actually delivered; or if mailed, at the close of business of the third business day after mailing.
(11) Mutual Representations. Each party represents and warrants to the other party that:
(i) The execution, delivery and performance of this Agreement have been duly authorized;
(ii) This Agreement is a valid and binding obligation of each party enforceable against it in accordance with its terms; and
(iii) There are no pending or threatened actions or proceedings which if adversely determined would impair either party’s right to perform its obligations hereunder.
(12) Attorneys’ Fees. If any legal action or proceeding is brought relating to this order, the prevailing party shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorney fees paid or incurred.
(13) Force Majeure. ABM shall be not responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, acts of a public enemy, Internet or other network “brownouts” or failures, power failures, cyber attacks, third party attack or other actions and acts of civil and military authorities.
(14) Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. An electronic signature shall have the same force and effect as a handwritten signature.
Miscellaneous. ABM and Client are independent contractors, and neither ABM nor Client is an agent, representative or partner of the other. This Agreement sets forth the entire agreement between Client and ABM, and supersedes any and all prior agreements (whether written or oral) of ABM and Client with respect to the subject matter set forth herein. This Agreement may only be modified, or any rights under it waived, by a written document executed by authorized representatives of both parties. This Agreement shall be interpreted, construed and enforced in all respects in accordance with laws of the state of California, without regard to the actual state or country of incorporation or residence of Client. Client hereby irrevocably consents to the exclusive jurisdiction of, the state courts in San Mateo County, California and the federal courts situated in the Northern District of California in connection with any action arising under this Agreement. Client may not assign this Agreement, in whole or in part without the prior written consent of ABM.