A. All advertising placements with Guerrero Howe Custom Publishing (“Guerrero Howe”) are subject to and governed by these terms and conditions. Guerrero Howe reserves the right at its absolute discretion, and at any time, to cancel any advertising order or reject any advertisement, whether or not the same has already been acknowledged and/or previously published. In the event of such cancellation or rejection by Guerrero Howe, advertising already run shall be paid for at the rate that would apply if the entire order were published. In the event of Advertiser’s or its Agency’s cancellation of any portion of any advertising order not in compliance with the terms hereof or failure to have published the specified number of advertisements, or if at any time Guerrero Howe in its reasonable judgment determines that Advertiser is not likely to publish the total amount of advertising specified in the applicable advertising order, any rate discount will be retroactively nullified and result in a short-rate. In such event, Advertiser and/or Agency must pay Guerrero Howe the short-rate (which is the difference between the rate charged on the contracted frequency and the higher rate based on the reduced frequency of advertisements actually published) within 30 days of invoice therefore and Advertiser will thereafter pay for advertising based on the standard advertising rates of Guerrero Howe as set forth in the then current media kit. Any merchandising program executed by Guerrero Howe in reliance on advertising that is cancelled will be paid for by Advertiser at the fair market rate for such program (including all costs and expenses incurred by Guerrero Howe).
B. Advertising orders that contain rates that vary from the standard rates of Guerrero Howe shall not be binding on Guerrero Howe unless approved in writing by an authorized officer of Guerrero Howe. In the event any non-standard rates are not approved in writing by an authorized officer of Guerrero Howe, the standard rates shall apply to such order at the discretion of Guerrero Howe.
C. Advertisements that simulate editorial content must be clearly defined and labeled “ADVERTISEMENT” and Guerrero Howe may, in its discretion, so label such copy.
D. Orders for advertising containing restrictions or specifying positions, facings, editorial adjacencies or other requirements may be accepted and inserted, but such restrictions or specifications are at Guerrero Howe’s sole discretion.
E. In no event shall Guerrero Howe’s liability with respect to any order exceed the total amount paid to Guerrero Howe for such order, including any liability resulting from the errors or omissions of Guerrero Howe. In no event shall Guerrero Howe be liable for special, incidental, consequential or punitive damages.
F. The following items apply to furnished inserts: (1) an accurate facsimile or electronic version of any furnished insert must be submitted to Guerrero Howe for review on or prior to the dates established by Guerrero Howe for the applicable publication; (2) Guerrero Howe is not responsible for errors or omissions in, or the production quality of, furnished inserts; and (3) Advertiser and/or Agency shall be responsible for any additional costs or expenses incurred by Guerrero Howe arising out of Advertiser’s and/or Agency’s failure to deliver furnished inserts pursuant to Guerrero Howe’s specifications or time requirements.
G. Advertiser and/or Agency shall remain liable for the full advertising rate in each of the following instances: (1) Guerrero Howe is unable to publish an advertisement as a result of Advertiser’s and/or Agency’s failure to comply with Guerrero Howe’s specifications or time requirements (in which case, Guerrero Howe shall not be required to run any generic or other advertisement); (2) the failure of Advertiser and/or Agency to cancel the applicable order in accordance with the cancellation requirements contained herein (in which case, Guerrero Howe shall not be required to run any generic or other advertisement); and (3) the cancellation or termination of the applicable feature story.
H. All matters with respect to any advertising order will be governed by the laws of the State of Illinois applicable to contracts to be performed entirely therein. Any action brought by Advertiser or Agency against Guerrero Howe must be brought in the state or federal courts in Chicago, Illinois; the parties hereby consent to the jurisdiction of such courts.
I. Advertiser and its Agency, if there be one, each represent that any advertising (including product samples) submitted to Guerrero Howe complies with all applicable laws and regulations and does not violate the rights of, and is not harmful to, any person, corporation or other entity. As part of the consideration to induce Guerrero Howe to publish such advertisement, Advertiser and its Agency, if there be one, each agrees jointly and severally to indemnify and save harmless Guerrero Howe, and its employees, owners and representatives, against all liability, loss, damage, and expense of any nature, including attorneys’ fees and court costs, arising out of any actual or potential claims for libel, invasion of privacy, copyright or trademark infringement and/or any other actual or potential claims or suits that may arise out of the copying, printing, publishing, distribution or transmission of such advertisement.
J. In the event an order is placed by an Agency on behalf of Advertiser, such Agency warrants and represents that it has full right and authority to place such order on behalf of Advertiser and that all legal obligations arising out of the placement of the advertisement will be binding on both Advertiser and Agency.
K. Advertiser and its Agency, if there be one, agree to be jointly and severally liable for the payment of all amounts charged by Guerrero Howe for each advertisement. Advertiser authorizes Guerrero Howe, at its election, to tender any invoice to Agency, and such tender shall constitute due notice to Advertiser of the invoice and such manner of billing shall in no way impair or limit the joint and several liability of Advertiser and Agency. Payment by Advertiser to Agency shall not discharge Advertiser’s liability to Guerrero Howe. The rights of Guerrero Howe shall in no way be affected by any dispute or claim between Advertiser and Agency.
L. Advertiser or Agency may not use any advertising space either directly or indirectly for any business, organization, enterprise, product, or service other than that for which the advertising space is provided by Guerrero Howe, nor may Advertiser or Agency authorize any others to use any advertising space in such manner.
M. An advertising order may be cancelled by Advertiser or Agency providing written notice of such cancellation to Guerrero Howe no later than the 3rd day after the contract date, which shall be the earlier of the date of the applicable advertising contract or the date the applicable insertion order is received by Guerrero Howe. In the event of any order cancellation, Advertiser and Agency shall remain liable for the full advertising rate (except as otherwise provided herein) and shall reimburse Guerrero Howe for the cost of any work performed or materials purchased on behalf of Advertiser, including the cost of services, paper and/or printing.
N. Advertiser and/or Agency agrees to reimburse Guerrero Howe for its attorneys’ fees and costs in collecting any unpaid amounts for any advertisement order.
O. Advertiser and Agency agree that any advertisements published may, at Guerrero Howe’s sole option, be included in all forms of media, whether now in existence or hereafter developed, in which the article, feature, issue or other writing (regardless of the form of such media) containing the advertisement is published, reproduced, distributed, displayed, performed, or transmitted, in whole or in part; provided, however, Guerrero Howe shall not be required to include (1) any advertisement originally published in one form of media in any other form of media regardless of any additional publication, reproduction, distribution, display, performance or transmission of the original article, feature, title, issue or other writing containing or otherwise related to such advertisement, or (2) any advertisement originally published with or in connection with any article, feature, issue or other writing in any additional publication, reproduction, distribution, display, performance or transmission of such article, feature, issue or other writing. The copyright in any advertisement created by Guerrero Howe is owned by Guerrero Howe, and may not be otherwise used by Advertiser or third parties without Guerrero Howe’s prior written consent.
P. Except for rates agreed to in writing by Advertiser and Guerrero Howe, advertising rates and units of space for each order shall be at the standard rates set forth in the media kit on the date the applicable insertion order is received by Guerrero Howe.
Q. Any Agency commissions are the sole obligation and liability of the applicable Advertiser.
R. Terms of sale: Payment is due by the earlier of (1) the listed due date in the applicable advertising contract for the particular advertisement and (2) 45 days from the date of the applicable advertising contract. Notwithstanding anything to the contrary contained herein or the applicable advertising contract, in the event full payment is not received by Guerrero Howe on or prior to the due date as provided in this subsection, the advertising rates for the applicable contract and advertisements shall increase to the standard rates set forth in the then current media kit and full payment of such amount shall be immediately due and owing; provided, however, in the event the advertising rates for the applicable advertising contract and advertisements are already based on the standard rates set forth in the then current media kit, interest will be charged on the outstanding balance at 2.0% per month.
S. Guerrero Howe has not made any representations to Advertiser or Agency that are not contained herein. No addition or alteration to these terms and conditions shall be valid or enforceable unless expressly agreed to in writing by Guerrero Howe. Unless expressly agreed to in writing by Guerrero Howe, no other terms or conditions in contracts, orders, copy, instruction, or other documents furnished by or on behalf of Advertiser or Agency (regardless of when received by Guerrero Howe) will be binding on Guerrero Howe.