TERMS AND CONDITIONS FOR SALE OF ADVERTISING AND SERVICES
These terms and conditions (these “Terms”) govern the sale of advertising and services by The N2 Company and its affiliates (collectively “N2”) to “you”, the advertiser named in the preceding order (the “Order”). Together, the Order and these Terms comprise the entire “Agreement” between you and N2 (the “parties”).
- PURCHASE OF ADVERTISING AND SERVICES.
You agree and promise to purchase advertising space from N2 in the N2 publication(s) listed in the Order, for the number of issues listed in the Order, and at the rate(s) listed in the Order. In exchange, N2 agrees to publish your advertising (“ads”) in the applicable publication(s) at the applicable rates. You also agree to purchase, and N2 agrees to provide, any related ad design or management services listed in the Order.
- SOCIAL MEDIA ADVERTISING SERVICES; DATA LICENSE.
[a] Except where the Order shows that you opted out of Social Media Ad Services (as defined below), and subject to the conditions listed in Section 2 [b], N2 will (i) create and run a photo ad on Facebook® and Instagram®️ (collectively “Facebook®”) that will target and remarket the readers of the N2 publication(s) listed in the Order, (ii) make reasonable efforts to provide a monthly report regarding the performance of such ad, and (iii) update the ad up to once a month upon written request from you with 30-days prior notice (collectively the “Social Media Ad Services” or “SMAS”). N2 will provide the Social Media Ad Services to you for a period of time equal to the period of time in which your print ad is published in the applicable N2 publication(s) listed in the Order.
[b] N2’s obligation to provide SMAS is expressly conditioned on: (i) you having an active Facebook® business page and granting N2 admin permission as an “advertiser” which only allows N2 to view ads, access reports and create and edit files; and (ii) there being no material adverse change that impairs N2’s ability to provide SMAS, including but not limited to material price increases or restrictions on digital advertising resulting from changes adopted by Facebook®. In the event of such a material adverse change, N2’s obligation to provide the SMAS will immediately cease and N2 will reduce the applicable per issue rate for the remaining term of the Agreement by an amount equal to the rate that Facebook® charged N2 to place your ad during the billing period immediately preceding the material adverse change; provided however, if the material adverse change is a material price increase adopted by Facebook®, you may elect in writing to continue receiving the SMAS by paying N2 the difference between the increased rate and the rate Facebook® charged N2 to place your ad during the billing period immediately preceding the material adverse change.
[c] In consideration for N2 providing the SMAS, you hereby grant to N2 a non-exclusive right to use data from reports generated in relation to your ads for the purposes of allowing N2 to provide such services to you, for N2 to aggregate the data to provide data trending analysis to you and similarly situated persons, and to use the data for N2’s internal business purposes.
- CHARGES; BILLING; AND PAYMENT TERMS.
[a] You must pay the monthly rates and any one-time charges listed on the Order. Prepayment is required, with payment due on or about 30 days before the publication of the applicable N2 publication. If you are paying by credit card, N2 will charge your card automatically when payment is due, which you hereby authorize. Where ad space is purchased in multiple N2 publications, payment for all ad space is due 30 days before publication of the one with the earliest publication date. You may not withhold payment for any reason, including a dispute between you and N2.
[b] You must pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 1.5% per month or the highest legal rate. All rates are exclusive of sales taxes (or any other similar taxes) on amounts payable by you hereunder. You are responsible for payment of all federal or state taxes on the sale of ad space and services. Any applicable sales taxes (or other similar taxes) for which you are responsible will be separately stated on your monthly invoice.
This Agreement does not create an exclusive arrangement between you and N2. You may advertise elsewhere, and N2 may provide ad space and services to all others, including your competitors.
- ADVERTISER OBLIGATIONS AND REPRESENTATIONS; INDEMNIFICATION.
[a] You must: (1) respond promptly to any N2 request for direction, information, or approvals that are reasonably necessary for N2 to perform hereunder; and (2) provide such materials, content or information as N2 may reasonably request to perform hereunder in a timely manner.
[b] N2 accepts, publishes and runs all ads, including those for which N2 has provided creative services, subject to your representations that you are familiar with all laws and regulations applicable to your ads, and that publishing such ads will not violate any law or third-party right (e.g., any intellectual property right). N2 will not perform a legal review of your ad(s), and you remain solely responsible for the ad’s contents and for legal and regulatory compliance.
[c] In consideration of N2 publishing and running your ads, you agree to indemnify N2 from and against any losses and expenses (including attorney’s fees) relating to such ads, including those arising from third-party claims or suits for infringement, violation of privacy or publicity rights, or from any and all claims or regulatory breaches.
- N2’S DISCRETION AS PUBLISHER.
[a] N2 may reject ads that it considers misleading, distasteful, illegal, or otherwise inappropriate. N2 may alter any ad material to make it conform to applicable specifications. N2 may require you to mark an ad as “advertising,” “sponsored content,” or the like to avoid confusion with editorial content.
[b] Except for the inside front cover, inside back cover, outside back cover, introduction or centerfold (each a “Premium Placement”), N2 may insert your ad anywhere at its discretion, and any conditions on the Order regarding placement will be treated as a positioning request only and is not guaranteed. N2’s inability to honor a specific position request due to conflicting editorial needs is not a breach of this Agreement. If you paid a premium for a particular placement, N2’s sole liability, and your sole remedy, for failure to satisfy that placement is issuing a credit or refund in an amount equal to the premium paid.
[c] N2 reserves the right to determine (and may change at any time without notice to you) the design, content, size, geographic coverage, distribution, and appearance of, N2’s publications, and how, where, how many, when, and whether such publications are published, distributed, or displayed. If N2 notifies you that an applicable publication is closed or is closing, your purchase obligations in relation to the closed publication will immediately terminate, and such closure will not constitute a breach of this Agreement by N2.
- AD PROOFS.
N2 will use reasonable efforts to provide you with ad proofs. Where proofs are provided in time for modification, you must notify N2 in writing of any changes or errors before the deadline set by N2. Otherwise, N2 will publish or run the ad as shown and no adjustment will be made. Colors, contrast, photos, font, and other features may appear differently in the published product and no adjustment will be made for those differences.
- ADVERTISING CONTENT; INTELLECTUAL PROPERTY.
N2 may use any ad published or run under this Agreement to promote N2’s products and services. If N2 supplies content for or designs your ads, the content and the ads are N2’s sole and exclusive property, except for content you supplied or licensed from third parties, and may be supplied to other advertisers. N2 grants you a perpetual, limited, royalty-free, non-exclusive, and non-transferable license to reproduce, publish, and distribute each ad that N2 creates for you.
- N2’S LIABILITY; LIMITATION OF LIABILITY; DISCLAIMER AND WAIVER.
[a] If N2 publishes or runs an ad with errors or omissions, or fails to publish or run an ad, your only remedy is to demand the subsequent publication of the corrected ad at no charge in the applicable N2 publication or Facebook or Instagram as may be applicable (“Makegood”). A demand for Makegood must be in writing and delivered to N2 within 30 days of the error, omission, or failure. N2 will not be liable or issue credit for errors or omissions that you caused or that do not materially affect the ad’s value.
[b] N2 WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER RELATED TO CONTRACT BREACH, TORT, OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER N2 WAS ADVISED OF POSSIBILITY OF SUCH DAMAGE. N2’S AGGREGATE LIABILITY RELATED TO THIS AGREEMENT, WHETHER RELATED TO CONTRACT BREACH, TORT, OR OTHERWISE, SHALL NOT EXCEED 2 TIMES THE TOTAL OF AMOUNTS PAID TO N2 UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
[c] N2 DOES NOT WARRANT THE NUMBER OF RESPONSES TO YOUR ADS, THE NUMBER OF PERSONS WHO WILL VIEW YOUR ADS, OR ANY OTHER BUSINESS BENEFIT.
- BARTER TRANSACTIONS.
Where you provide in-kind goods or services in exchange for advertising or services under this Agreement, such goods or services and their fair market value must be identified in the space designated in the Order. You acknowledge that the goods or services are being delivered to the N2 franchisee that originated the Order and that such goods or services may constitute income to such N2 franchisee; and that you and the franchisee are responsible for any tax reporting that applicable law may require related to the in-kind trade, such as issuing a 1099-MISC to the franchisee as the receiving party.
- READER OR SPONSOR EVENTS NOT PROMISED.
Certain N2 publications coordinate periodic appreciation and networking events for its readers and sponsors. However, the frequency of such events or whether they happen at all varies from publication to publication. Accordingly, you acknowledge reader or sponsor events are not a promised or intended benefit under this Agreement.
- TERM; TERMINATION; EARLY TERMINATION FEE.
[a] The term of this Agreement is the period of time between the date you sign the Order or orally consent to this Agreement (the “Agreement Date”) and the date that N2 publishes the final ad you committed to purchase under this Agreement.
[b] In addition to N2’s rights under Section 6[c], N2 may terminate this Agreement at any time, with or without notice, for your failure to make payment when due and owing.
[c] You may terminate this Agreement immediately upon written notice if: (1) N2 commits a material breach and fails to cure such breach within 30 days of receiving written notice of the breach; or (2) for applicable publications that are in print as of the Agreement Date, you may terminate if such publication is not published for more than 2 consecutive months; for applicable publications that are not yet in print as of the Agreement Date, you may terminate if such publication is not published within 6 months of the Agreement Date; written notice to terminate under this Section 12[c](2) must be delivered to N2 within 30 days of the applicable failure to publish.
[d] You may elect to cancel ad space and services under this Agreement, whether in part or whole, at any time upon the following conditions: (1) you are current on all payments; (2) your ad has run in at least 12 issues of the N2 publication in which you wish to cancel advertising; (3) you provide N2 written notification of cancellation; and (4) you pay N2 an early termination fee (“ETF”) for each N2 publication you wish to cancel. The per-publication ETF will be calculated as follows: (a) if your ad has appeared in more than 12 but less than 24 issues of the applicable publication, the ETF will be equal to 50% of your remaining payment obligations for that publication, or (b) if your ad has appeared in more than 24 issues of the applicable publication, the ETF will be equal to 25% of your remaining payment obligations for that publication. This provision provides an alternative means of performance, which you are free to elect or ignore. Payment of an ETF is not intended as a penalty or measure of damages.
- N2’S REMEDIES.
If you do not pay all charges by 30 days after the due date, fail to meet any obligation under this Agreement, or any representation is or becomes untrue, N2 may, without notice: (i) require you to immediately pay all unpaid amounts you owe or will owe for all advertising and services under the entire term of this Agreement, (ii) remove your ads from any publication not yet published, (iii) suspend or terminate any services, including Social Media Ad Services, (iv) recover all collection costs and reasonable attorney’s fees, and (v) exercise any other rights or remedies available at law or in equity. If you breach this Agreement, N2 will have no duty to mitigate damages by selling ad space the same or similar to that purchased by you under this Agreement, unless the advertising you purchased is Premium Placement.
- CHOICE OF LAW AND FORUM.
North Carolina law governs this Agreement, and the state or federal courts located in New Hanover County, North Carolina are the sole and exclusive jurisdiction for any legal suit, action, or proceeding arising out of or relating to this Agreement. You and N2 irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
- ENTIRE AGREEMENT. This Agreement is the only understanding between you and N2, and it supersedes and excludes any understandings or representations, whether written or oral, that may have come before or during it. If conflict between these Terms and the Order, these Terms govern. No terms or conditions in the Order or any instructions or documents that conflict with or alter these Terms will bind N2 unless authorized in writing by an N2 senior executive
If a court finds any term invalid, illegal or unenforceable, such defect shall not prejudice this Agreement’s other terms. A signed writing is required to modify, amend, or waive any term of these Terms. Any delay in, or partial exercising of, rights is not a waiver. You cannot assign your rights or duties without N2’s written consent; N2 may assign its rights or duties to any third party.