Terms & Conditions

Terms & Conditions of Advertising Contract for
Westside Guides Magazines and Website

1. Scope

These terms and conditions govern all Orders (as defined in Section 3) for print and digital (website/internet) advertising placements fulfilled by Westside Guides which publishes and/or distributes such advertising (“Publisher”). Each Order and these terms and conditions together constitute the agreement (“Agreement”) between the advertiser and its agency, if any (“Advertiser”), and the Publisher. These terms and conditions apply to all Orders, and may be updated from time to time.

2. Term

The Term of this Agreement is defined in each Order (as defined in Section 3), either expressly as “the Term” or as the timeframe of the advertising campaign.

3. Insertion Order/Order

Advertiser has contracted the Publisher for the publication or distribution of advertising as described in an Insertion Order (“IO”) or as otherwise ordered by Advertiser (non-IO order) (collectively, “Orders”). All terms and conditions of this Agreement shall apply to every publication and/or distribution of an advertisement on Advertiser’s behalf (each, an “Ad”). No terms of an Order or other communication from Advertiser that contradict or are inconsistent with the terms and conditions of this Agreement shall be binding on Publisher, unless in writing and signed by both parties.

4. Representations and Warranties; Compliance with Laws

Advertiser represents, warrants and covenants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) its performance of this Agreement will not violate any contracts with third parties; (c) all materials and digital files submitted to Publisher (“Ad Material”) do not contain any computer viruses or other damaging code; (d) all Ad Material and campaigns do not violate any rights of any third parties, including but not limited to copyright, trademark, patents, trade secrets, right to privacy, right of publicity (“Intellectual Property Rights”), and civil rights; and (e) it is familiar with and all Ad Materials and campaigns comply with all applicable laws, regulations, and FTC and industry guidelines, including but not limited to: local, state and federal laws regarding political advertising and fair housing, and Native Advertising: A Guide for Business at https://www.ftc.gov/tipsadvice/business-center/guidance/native-advertising-guide-businesses (December 2015). By way of emphasis, Advertiser represents and warrants that it has obtained all necessary consents and releases before submitting Ad Material, and all statements and direct and indirect claims made in each Ad are accurate and true and supported by competent and reliable substantiation.

Digital (website) Advertiser also represents, warrants, covenants and agrees that (a) its Ads and ad campaigns will comply with Publisher’s privacy policy, the California Online Privacy Protection Act, and the Self-Regulatory Principles for Online Behavioral Advertising at http://www.aboutads.info/obaprinciples.

In the event of claims for unfair competition, copyright infringement, actions or proceedings based on the contents, Advertiser will hold publisher harmless and indemnify for all legal costs, without limitation on such indemnities.

Advertiser recognizes that the quality of reproduction of an advertisement is dependent on the quality of the material furnished by the Advertiser, including, and without limitation, the quality of the graphics, copy, type, etc.

Advertiser recognizes and agrees that the Publisher shall not be liable for:

5. Ad Submission/Acceptance for All Placements (Print & Websites)

5.1 No Legal Review

Publisher does not assume any obligations to perform legal review of Ads.

5.2 Ad Submission/Material Delivery

All submissions, including charges and payments as well as any changes or cancellation, must be received in our office by closing date, which is the 20th day of the month prior to distribution – e.g. the FEB/MAR issue close date is on January 20th and the APR/MAY is March 20th.

Failure of Advertiser to meet any deadlines may result in additional charges and changes in publication or distribution dates.

Advertiser recognizes that the quality of reproduction of an advertisement is dependent on the quality of the material furnished by the Advertiser, including, and without limitation, the quality of the graphics, copy, type, etc.

Advertiser shall be responsible for timely providing to Publisher all Ad Material necessary for publication and distribution of the Ads, including all necessary artwork and/or digital files, the timing and formats of which may be more specifically set forth in the Order or in Publisher’s media specifications. In the event that all necessary materials are not received in time for the scheduled run date, and unless otherwise specifically instructed by Advertiser, Publisher may, at its sole discretion, use artwork or other materials from previous Ads placed by Advertiser, if applicable. Publisher will not be responsible for Ad Material that is not properly formatted or displayed or that cannot be accessed or viewed because it was not received by Publisher in the proper form, in a timely manner, or in an acceptable technical quality for mobile or online publication.

Ad Materials that do not conform to the Order may result in a higher price. See Section 8 on Liability for Errors / Omissions / Cancellations

Publisher prohibits, and may postpone, cancel or otherwise return, any Ad Material that violates its advertising standards, including but not limited to advertising that violates applicable laws, promotes pornography, illegal goods, illegal drugs, illegal drug paraphernalia, pirated computer programs, and instructions on how to assemble or otherwise make bombs, grenades or other weapons.

Publisher is not responsible for any loss or damage to any material of the Advertiser while such material is in transit, or in the possession of the Publisher.

5.3 Ad Preparation Services

Advertiser recognizes that the quality of reproduction of an advertisement is dependent on the quality of the material furnished by the Advertiser, including, and without limitation, the quality of the graphics, copy, type, etc.

For additional charges to be agreed to by the parties, Publisher may provide Advertiser with additional services to include preparation or production work required to publish the ad. These services may include design, composition, text and artwork. Westside Guides will receive the payment before start of any work which includes design and production of Ad layouts and other elements of an Order for the Advertiser.

Publisher retains all rights, including copyright, to all Ad layouts and other elements that represent the creative effort of Publisher or contain material prepared by Publisher. Advertiser shall not authorize photographic or other reproduction of any such Ad layout in any other publication without the express written consent of Publisher. Advertiser remains solely responsible for the contents of the Ad(s) and for compliance with any laws regulating such advertising as represented by Advertiser in Section 4 above.

5.4 Ad Acceptance

Submission of an Ad to Publisher does not constitute a commitment by Publisher to publish or distribute the Ad. Publisher accepts an Ad only by publishing or distributing such Ad.

The Publisher, in its sole discretion, may accept or reject all materials submitted for advertising. Publisher reserves the right to refuse to publish any material not in keeping with the style and standards of their editorial philosophy and format. If any advertising is not acceptable the Publisher may either: (a) Refuse to accept the advertising submitted; or (b) Postpone, cancel, or require, as a condition to publication, modifications to any Ad Material that fails to meet the style and standards that are acceptable. The Publisher’s decision in these matters is final, binding and not subject to appeal.

5.5 Rejection and Alteration of Ads

Publisher reserves the right to alter any Ad Material in order for the material to conform to Publisher’s current mechanical or technical specifications. The rates stated in the Order or rate card shall remain the same upon a reduction in the size of any Ad as long as the Ad maintains the same proportion of the entire page.

5.6 Labeling of Ads

Publisher reserves the right to place advertisement wherever they deem appropriate; unless otherwise agreed upon. The word “advertisement” or “advertorial” will be placed with copy that, in the publisher’s opinion resembles editorial matter.

6 Ad Preparation, Acceptance and Other Terms for Digital Ads Only

6.1 Rejection of Ads

Publisher shall notify Advertiser when it rejects Ad Materials due to unsatisfactory technical quality, inappropriate content, or any other reason.

6.2 Digital Ownership

As between the parties, Publisher owns all right, title and interest in and to all content on the Publisher websites (except for Ad Materials) and all other content, html and code. Nothing in this Agreement or otherwise precludes Publisher from using any code, design, idea, concept or material used in connection with this Agreement on behalf of itself or any third party. Publisher owns all right, title and interest in and to any data about users of its websites. Advertiser authorizes Publisher to bring any claims Publisher may in its reasonable discretion choose to pursue to prevent third party use of the content or data contained in any Advertising, without Advertiser’s consent.

7 Financial Terms

7.1 Rates

Advertiser agrees to the rates set forth in the current rate card, which is incorporated herein by reference. All Ads scheduled which are canceled by the Advertiser, will be short-rated. This means that all ads that have been run when an Order is cancelled will be charged the one-time, non discounted, rate. The Advertiser further agrees to send payment with each Order. The Advertiser, and its agency, if any, is jointly and separately liable for all monies due for ads placed or contracted for in accordance with the Agreement.

7.2 Payments and Disputes

7.2.1 Payment

All Invoices are due and payable upon receipt or at the time an Order is made. “Invoice” means any electronic or paper request for payment regardless of the title of the document. Invoices may be titled “statement” or “bill.”

7.2.2 Invoice Disputes

Advertiser waives any dispute regarding any item included in an Invoice unless notice and amount of such dispute is provided to Publisher within sixty (60) days of the Invoice date.

7.2.3 Late Payment and Collections

Except for invoiced payments that Advertiser has successfully disputed, Advertiser shall be responsible for all costs incurred by Publisher in connection with the collection of any amounts owing hereunder, including without limitation, collection fees, court costs and reasonable attorneys’ fees.

7.3 Rate Changes

Publisher shall have the right to revise the advertising rates set forth in this Agreement at any time upon notice to Advertiser of such rates. Advertiser may terminate this Agreement on the date the new rates become effective by giving written notice within 30 days of such termination. In the event of such termination, Advertiser shall be liable for Ads published prior to such termination at the Current Agreement Rate. “Current Agreement Rate” is defined as the billing rate in effect at the time of placement.

8 Liability for Errors/Omissions/Cancellations

It is Advertiser’s responsibility to check for errors in its Ads before and after publication or distribution. Advertiser shall check the first appearance of Ads for correction and Publisher shall be liable for only one incorrect publication or distribution. Publisher shall not be liable for any error if, at Publisher’s option, Publisher subsequently publishes a corrected Ad. Publisher’s liability for an error shall not exceed the cost of space occupied by the error.

Publisher is not responsible for errors on copy received after deadline. Publisher assumes no financial responsibility for typographical errors, or for omission of copy of Ads.

Publisher is not responsible for errors involving Orders, cancellations or corrections given orally. Written or facsimile confirmation of Orders, cancellations or corrections must be received prior to Publisher’s cancellation deadline. Publisher will publish and distribute Ads and bill Advertiser for all Orders that are not canceled prior to the deadline. Advertiser may be subject to a cancellation charge when such cancellation results in production delays.

If Publisher fails to publish, display, or distribute any Ad for any reason, Publisher shall at its option either (a) provide substitute advertising of comparable value (“makegood”), or (b) refund to Advertiser a pro rata portion of the fee Advertiser has paid to Publisher. Such remedies are Advertiser’s sole remedy for Publisher’s failure to display Ads.

Publisher’s liability for errors or omissions in print display advertisements shall be limited to the cost of advertising space in an amount equal to the erroneous portion of the advertisement. Publisher’s liability for errors in distribution of advertising inserts shall be limited to the cost of distribution of the improperly distributed advertising inserts. Publisher shall have no liability for, and no credit shall be issued to Advertiser for, errors that do not materially affect the value of the advertisement or advertising insert or where Advertiser is responsible for the error or omission. Credits for errors in advertisements materially affected by the error are allowed for the first publication or distribution only.

Publisher assumes no responsibility for damage that occurs to mail pieces as a result of the processing and delivery operations of the U.S. Post Office.

In the event the Advertiser has paid a premium for a particular position, damages for failure to publish in a particular position shall be limited to the refund of the premium paid.

9 Indemnification

Advertiser shall defend, indemnify and hold harmless Publisher and its affiliates, subsidiaries, and their respective directors, officers, principals, managers, members, partners, shareholders, employees, and controlling persons and their affiliates (Publisher and each such person being an “Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, demands, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification (collectively, “Losses”), arising out of or resulting from its breach of this Agreement; negligence or willful act or omission of Advertiser or its personnel or affiliates in connection with its performance of its obligations under this Agreement; the content of, or representations made in any Ad or any website linked to from an Ad; and any other claims of any nature arising from or attributable to the publication or distribution of any Ad.

10 Limitation of Liability

Except with respect to Advertiser’s indemnification and confidentiality obligations, in no event will either party be liable to the other for any consequential, incidental, indirect, exemplary, special or punitive damages whatsoever (including damages for loss of use, revenue or profit, business interruption and loss of information), whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not such party has been advised of the possibility of such damages. In no event shall Publisher be liable to Advertiser for any amount greater than the amount paid by Advertiser to Publisher under this Agreement.

PUBLISHER EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING ITS SERVICES OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, AND ANY WARRANTY REGARDING (a) THE NUMBER OF PERSONS WHO WILL ACCESS ANY ONLINE ADVERTISEMENT, ON ANY PUBLISHER WEBSITE OR THE ADVERTISER WEBSITE; (b) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM ANY ADVERTISING; AND (c) THE SPEED, ACCESSIBILITY, OPERATION OR FUNCTIONALITY OF ANY ADVERTISING TO BE DISPLAYED ONLINE.

11 Advertiser Represented by Agency

Agency’s representative represents and warrants that he or she has all necessary authority to enter into this Agreement on behalf of Agency. Agency represents and warrants that it has all necessary authority to enter into this Agreement on behalf of Advertiser.

Any obligation of Advertiser pursuant to this Agreement may be satisfied by an advertising agency which has been duly appointed by Advertiser to act on Advertiser’s behalf (the “Agency”) and shall be deemed to be an obligation of Advertiser and the Agency. Additionally, any right of Advertiser pursuant to this Agreement may be exercised by the Agency, and shall be deemed to be a right of Advertiser and the Agency. Collectively, the Advertiser and Agency will be referred to as “Advertiser.” Each shall be jointly and severally liable for the obligations of the other.

Agency shall be liable for payment for all advertising placed and invoiced by each Publisher publication in which Agency places an advertisement, regardless of any contrary language in any past, contemporaneous or future writing, regardless of whether it receives payment from Advertiser, and regardless of whether the identity of the Agency’s client is known to such Publisher publication. Agency will make available to Publisher upon request written confirmation of the relationship between Agency and Advertiser and of Agency’s authorization to act on Advertiser’s behalf in connection with this Agreement. In addition, upon the request of Publisher, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the Order.

12 License to Ad Materials

Advertiser grants Publisher a non-exclusive, perpetual, irrevocable and worldwide license to copy, store, display, print and distribute any and all Ad Materials provided by Advertiser or its agents, including but not limited to photographs, artwork, text and graphics, in any media, presently known or unknown, including but not limited to Publisher’s electronic publications on the Internet and in any archival retrieval system whether that information is digitally stored or stored on any other media.

Publisher has no obligation to return any material (including Ad Material) submitted to Publisher by or on behalf of Advertiser to Advertiser or any other party, and Publisher shall have no liability for its loss or destruction. Publisher and its service providers shall have the right to use any Ad published in or distributed by a Publisher publication for the purpose of\ promoting any of the products and services of Publisher or applicable service provider.

13 Confidentiality

Publisher may disclose or make available to the Advertiser (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property Rights, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement including but not limited to the pricing and rates, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). The Advertiser shall from receipt/disclosure of such Confidential Information: (a) protect and safeguard the confidentiality of the Publisher’s Confidential Information with at least the same degree of care as the Advertiser would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Publisher’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (c) not disclose any such Confidential Information to any person, except to the Advertiser’s representatives who need to know the Confidential Information to assist the Advertiser, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Advertiser shall be responsible for any breach of this Section caused by any of its representatives or agents. At any time during or after the Term, at the Publisher’s written request, the Advertiser and its representatives shall promptly return/destroy all Confidential Information and copies thereof that it has received under this Agreement.

14 Other Terms

14.1 Relationship of Parties

Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Publisher is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.

11.2 Assignment

Advertiser may not resell, assign, or transfer any of its rights or obligations under this Agreement without the prior written consent of Publisher. All terms and conditions in this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted transferees, successors, and assigns.

11.3 Severability

If any provision hereof is held invalid or unenforceable, such invalidity shall not affect the validity or operation of any other provision.

11.4 Disagreement

In the event that an action, suit or legal proceedings are initiated or brought to enforce any or all of the provisions of this Agreement, or to collect any monies due under this Agreement, the Publisher shall be entitled to such attorneys’ fees, costs and disbursements as are deemed reasonable and proper. Publisher’s entitlement to reasonable attorneys’ fees and costs also applies to any appellate proceedings.

11.5. Entire Agreement

This document constitutes the entire Agreement between the parties and supersedes all prior Agreements, understandings and proposals (whether written or oral) with respect to matters covered herein. No changes, modifications, alterations or amendments shall be effective unless made in writing by the parties with the same formality as the Agreement.

11.6 Governing Law & Venue

This Agreement, including all Order documents, and all matters arising out of or relating to this Agreement, shall be deemed executed in the State of California, and shall be interpreted and construed in accordance with the laws of the State of California relating to contracts made and performed therein. Venue shall be proper only in the County of Los Angeles, State of California.

11.7 Waiver

No waiver by the Publisher of any breach or default hereunder shall be deemed a waiver of any repetition of such breach or fault or in any way affect any of the terms and conditions of this Agreement.