The following terms and conditions (“Advertiser Terms and Conditions”) govern the placement and delivery of advertising (“Ad”) as set forth in the Insertion Order submitted by the Advertiser. The Advertiser Terms and Conditions and any associated Insertion Order or Insertion Orders are collectively referred to herein as the “Advertiser Agreement”.
This Agreement is entered by and between Hamrick Media, LLC and the company named as advertiser in the Insertion Order (“Advertiser”) and/or the agency listed in the Insertion Order for such Advertiser (“Agency”), if any.
1. Invoices
Invoices will be sent by Hamrick Media, LLC (by way of SamCart) as dictated in the payment schedule in your Media Plan, or otherwise from time to time according to Hamrick Media, LLC’s normal billing procedures. Invoices will be sent by e-mail to the billing contact of the Advertiser or Agency, as applicable and as set forth in the Media Plan. Failure by Hamrick Media, LLC’s for whatever reason to send a timely invoice will not affect Advertiser’s obligation to pay for any Ads placed in accordance with the Media Plan. Opportunities to cancel media placements once a Media Plan is electronically signed are limited.
2. Delivery of Advertising Materials
The Advertiser will, at its sole cost and expense, create and deliver all advertising materials required for any Ad (“Advertising Materials”) according to technical specifications provided by Hamrick Media, LLC. If the delivered Advertising Materials do not conform to Hamrick Media, LLC’s technical specifications or do not arrive timely enough to deliver the Ad on any agreed dates according to the Insertion Order, then Hamrick Media, LLC, in its sole discretion, may: (a) reject such Ad and refund any applicable amounts paid in advance; or (b) postpone running such Ad until a reasonable period of time after (i) the non-conforming Advertising Materials are corrected, or (ii) the late-arriving Advertising Materials are received; in any case, Hamrick Media, LLC may begin to charge the Advertiser on the Insertion Order start date on a pro rata basis based on the full Insertion Order for each full day the Advertising Materials are not received.
3. Advertiser and Agency Representations and Warranties
The Advertiser, and any Agency listed on the Insertion Order on its behalf is responsible for any liability arising out of or relating to any Ad and Advertising Materials provided by the Advertiser or Agency hereunder and any material to which users can link through such Ad (“Linked Content”). The Advertiser represents and warrants that no part of the Ad, Advertising Materials or Linked Content will: (a) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing export control, false advertising or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses or other similar harmful or deleterious programming routines.
4. DISCLAIMER OF WARRANTIES
HAMRICK MEDIA, LLC PROVIDES ITS PUBLICATIONS, WEBSITES, AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. IN THE EVENT OF ANY ERROR OR MALFUNCTION IN THE DISPLAY OR DISTRIBUTION OF ANY AD, HAMRICK MEDIA, LLC SOLE OBLIGATION WILL BE TO REPRINT OR REDISPLAY THE AD AS SOON AS REASONABLY PRACTICABLE. HAMRICK MEDIA, LLC DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE AND EXPRESSLY EXCLUDES ALL WARRANTIES, REPRESENTATIONS, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW.
5. LIMITATIONS OF LIABILITY
IN NO EVENT SHALL HAMRICK MEDIA, LLC BE LIABLE BE LIABLE FOR ANY LOSS OF PROFITS, DEPLETION OF GOODWILL AND/OR SIMILAR LOSSES OR LOSS OR CORRUPTION OF DATA OR INFORMATION, OR PURE ECONOMIC LOSS, OR FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS, COSTS, DAMAGES, CHARGES OR EXPENSES ARISING OUT OF OR IN CONNECTION WITH THIS ADVERTISER AGREEMENT INCLUDING ANY INSERTION ORDER (EVEN IF HAMRICK MEDIA, LLC WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING). UNDER NO CIRCUMSTANCES SHALL HAMRICK MEDIA, LLC BE LIABLE TO THE ADVERTISER, AGENCY OR ANY THIRD PARTIES FOR AN AMOUNT GREATER THAN THE AMOUNTS RECEIVED BY HAMRICK MEDIA, LLC UNDER THE RELEVANT INSERTION ORDER IN RELATION TO WHICH SUCH LIABILITY MAY ARISE. IN LIEU OF REFUND, HAMRICK MEDIA, LLC SHALL BE PERMITTED TO CAUSE THE PLACEMENT OF “MAKE-GOOD” ADVERTISING, IF THE “MAKE-GOOD” ADVERTISING IS PROVIDED WITHIN A REASONABLE PERIOD OF TIME AFTER THE LIABILITY HAS ACCRUED.
6. Indemnity
Each of the Advertiser and any Agency agrees to indemnify, defend, and hold harmless Hamrick Media, LLC and its affiliates, directors, officers, agents and representatives for and from any claims, liabilities, losses, costs and expenses (including reasonable legal fees and disbursements) resulting from or arising out of (a) the acts or omissions or breach of this Advertiser Agreement by the Advertiser or such Agency as applicable (including Advertiser’s Representations and Warranties set forth above), (b) the content or subject matter of any Ad or Advertising Materials, or (c) any violation of any applicable laws, rules, regulations, industry guidelines or policies, including without limitation relating to any end user or other data that it may collect or have collected in relation to the Ads placed according to the Insertion Order.
7. Miscellaneous
This Advertiser Agreement, including these Advertiser Terms and Conditions and associated Insertion Order(s), sets forth the entire agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter hereof. Only a written addendum signed by both parties may change this. This Advertiser Agreement will be governed and construed in accordance with the laws of the State of Oklahoma. The Advertiser and PMMI agree to submit to the exclusive jurisdiction of the courts of Norman, Oklahoma. If any provision of this Advertiser Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.