2014 Condé Nast Advertising Rate Card

CONTRACT TERMS AND CONDITIONS FOR PRINT MAGAZINE PUBLICATIONs, WEBSITES, MOBILE APPLICATIONS, AND DIGITAL MAGAZINES

The following terms and conditions govern all entities that place advertising (“Advertiser”), either directly or through an agent (“Agency”), in print magazines (“Magazines”), websites and mobile sites (collectively, “Websites”), email campaigns (“Email(s)”), digital magazine publications (“Digital Editions”), any other applications (collectively, together with Digital Editions, the “Apps”), and any other services (collectively, together with Magazines, Digital Editions, Websites, Emails, and Apps, the “Service”) published and/or owned, licensed or operated by or on behalf of Condé Nast (“Publisher”). The placement of advertising on any Service constitutes Advertiser’s (and, if applicable, Agency’s) agreement to these terms and conditions. These terms and conditions may be modified from time to time by Publisher; additional placement of advertising will constitute Advertiser’s (and, if applicable, Agency’s) agreement to any such modifications.

A.  The New Yorker’s Right To Reject, Cancel or Terminate Orders

The New Yorker reserves the right at its absolute discretion, and at any time, to cancel any advertising order or reject any advertising copy in connection with any Service, whether or not the same has already been acknowledged and/or previously published, displayed, performed or transmitted (collectively referred to herein as “Published” or “Publish”), including, but not limited to, for reasons relating to the content of the advertisement or any technology associated with the advertisement. In the event of such cancellation or rejection by The New Yorker, advertising already run and to be run shall be paid for at the rate that would apply if the entire order were Published and no Short Rate (as defined below) will apply.

In addition, The New Yorker reserves the right to (i) remove from selected copies, editions, versions, or sections of a Service advertisements containing matter that readers have deemed objectionable (ii) implement blocking technology (including, but not limited to, geo-blocking technology) in connection with a Service; and (iii) enhance, upgrade and/or otherwise modify or discontinue any Service at any time.

The New Yorker, at its absolute discretion, may terminate its relationship with Advertiser and/or Agency for the breach of any of the terms hereof, including without limitation a breach based on the failure on the part of either Advertiser or Agency to pay each bill by its due date. Should The New Yorker terminate its relationship with Advertiser and/or Agency, a 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 and paid for, herein a “Short-Rate”) may apply and all charges incurred together with short-rate charges shall be immediately due and payable. Furthermore, in the event Advertiser or Agency breaches, The New Yorker may, in addition to its other remedies, (a) cancel its recognition of Agency, thereby causing Agency to lose claim to any commission for any further advertising placed with The New Yorker on behalf of Advertiser or any other client of Agency, and/or (b) refuse to Publish any or all of Advertiser’s advertising.

B.  Advertiser’s Failure to Run Advertising/Short-Rate/Merchandising Programs

All agreements for advertising frequency discounts in connection with any Service require that the specified number of advertisements be Published within a specified period and be promptly paid for. In the event of Advertiser’s or its Agency’s cancellation of any portion of any advertising order/contract or failure to have Published and paid for the specified number of advertisements, or if at any time The New Yorker in its reasonable judgment determines that Advertiser is not likely to Publish and pay for the total amount of advertising specified during the term of the agreement, any rate discount will be retroactively nullified, including for previously Published advertisements, and may result in a Short-Rate. In such event, Advertiser and/or Agency must reimburse The New Yorker for the Short-Rate within 30 days of invoice therefor and Advertiser will thereafter pay for advertising at the open rate or at the earned rate(s) as applicable. Any merchandising program executed by The New Yorker in reliance on advertising that is cancelled will be paid for by Advertiser at the fair market rate for such program. Advertising credits (for any earned advertising frequency discount adjustments for advertising run in excess of specified schedule) will only be earned if all advertising is paid for by the due date. Advertising credits must be used by the Advertiser within six months after the end of the period in which they were earned. If any portion of such advertising credits remain unused at the expiration of the foregoing six month period, such unused advertising credits shall be expired and The New Yorker shall not have any further obligation to Advertiser and/or Agency with respect thereto.

C.  Restrictions on Advertiser’s Ability to Cancel Advertising Orders for Magazines and Digital Editions

Orders for inside or outside cover pages for Magazines and Digital Editions are non-cancelable. Options on cover positions for Magazines must be exercised at least 30 days prior to four-color closing date. If an order is not received by such date, the cover option automatically lapses. Orders for all inside advertising units for Magazines and Digital Editions are non-cancelable less than 15 days prior to closing date. Orders for furnished inserts for Magazines are non-cancelable the first day of the fourth calendar month preceding the month imprinted on the cover of the issue. Orders for all The New Yorker-produced inserts for Magazines are non-cancelable. In any event, Advertiser will be responsible for the cost of any work performed or materials purchased on behalf of Advertiser, including the cost of services, paper and/or printing.

D.  Advertising Positioning at The New Yorker’s Discretion

Orders for advertising containing restrictions or specifying positions, facings, editorial adjacencies or other requirements may be accepted and Published but such restrictions or specifications are at The New Yorker’s sole discretion, and in no event shall such approved restrictions or specifications relate to any user generated content on The New Yorker’s Websites, Apps and/or Emails. 

E.  Labeling of Advertisements

Advertisements that simulate or resemble editorial content must be clearly identified and labeled “ADVERTISEMENT” or “PROMOTION” or “SPECIAL ADVERTISING SECTION” at the top of the advertisement, and Publisher may, in its discretion, so label such copy.

F.  Inserts

An accurate copy of any furnished insert must be submitted to The New Yorker for review prior to the printing of the insert. The New Yorker’s review and/or approval of such copy does not release or relinquish Advertiser/Agency from its responsibilities hereunder. The New Yorker is not responsible for errors or omissions in, or the production quality of, furnished inserts. Advertiser and/or Agency shall be responsible for any additional charges incurred by Publisher arising out of Advertiser and/or Agency’s failure to deliver furnished inserts pursuant to The New Yorker’s specifications. In the event that The New Yorker is unable to Publish the furnished insert as a result of such failure to comply, Advertiser and/or Agency shall nevertheless remain liable for the space cost of such insert.

G.  Errors in or Omissions of Advertisements

In the event of The New Yorker’s errors in or omissions of any advertisement(s), The New Yorker’s liability shall be limited to a credit of the amount paid attributable to the space of the error/omission (in no event shall such credit exceed the total amount paid to The New Yorker for the advertisement), and The New Yorker shall have no liability unless the error/omission is brought to the The New Yorker’s attention no later than 60 days after the advertisement is first Published. However, if a copy of the advertisement was provided or reviewed by Advertiser, The New Yorker shall have no liability. In no event will The New Yorker have any liability for errors or omissions caused by force majeure or errors in key numbers. In the event of a suspension of The New Yorker’s Service due to computer, software, or network malfunction, congestion, repair, strike, accidents, fire, flood, storms, terrorist attacks, acts of war or any other cause or contingencies or force majeure beyond the reasonable control of The New Yorker, it is agreed that such suspension shall not invalidate any advertising agreement but a) will give The New Yorker the option to cancel any advertising agreement, or if The New Yorker does not do so, b) upon resumption of The New Yorker’s Service, the agreement shall be continued and The New Yorker will have no liability for any errors or omissions or any damages or missed impressions caused by such suspension. IN NO EVENT WILL PUBLISHER HAVE ANY LIABILITY FOR ANY ADVERTISING CREATIVE OR PRINTING COSTS, ADMINISTRATIVE COSTS, AND/OR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE.

H.  Trademarks

The titles and logos of the Service Published or used by The New Yorker are registered trademarks and/or trademarks protected under common law. Neither the titles nor the logos may be used without the express written permission of The New Yorker.

I.   Warranties; Indemnification

Advertiser and its Agency, if there be one, each represent and warrant that: (i) Advertiser’s and third parties’ websites, mobile sites, applications, e-mail campaigns and any other services that are associated with advertising purchased by Advertiser or Agency shall contain all necessary consumer disclosures required by applicable federal, state and local laws, rules and regulations, including, but not limited to, a conspicuous link to a clear, accurate, and up-to-date Privacy Policy that: (a) discloses (1) the usage of third party technology; (2) the participation of third party service providers; and (3) the data collection and usage by such service providers and from such third party technology; and (b) complies with all applicable privacy laws, rules and regulations; (ii) it will not merge personally identifiable information with information previously collected as non-personally identifiable without robust notice of, and the end-user’s prior affirmation (i.e., “opt-in”) consent to, that merger; and (iii) any advertising or other material (including, but not limited to, product samples) submitted by Advertiser or Agency, and/or created by The New Yorker on behalf of Advertiser or Agency, and any material to which such advertisement or other material links or refers, complies with all applicable laws, rules and regulations and does not and will not violate the personal or proprietary rights of, and is not harmful to, any person, corporation or other entity. (Advertiser understands that although the intended audience of the Service is primarily in North America, the Service may be accessible and/or have incidental physical distribution throughout the world.) As part of the consideration to induce The New Yorker to Publish such advertisement, Advertiser and its Agency, if there be one, each agrees jointly and severally to defend, indemnify and hold harmless The New Yorker, its parent, subsidiaries and affiliates, and each of their officers, directors, members, employees, contractors, licensees, agents, representatives, successors and assigns against any and all liability, loss, damage, and expense of any nature, including attorneys’ fees (collectively, “Losses”) arising out of any actual or potential claims for libel, invasion of privacy, harm, copyright, patent, or trademark infringement, and/or any other actual or potential claims or suits that may arise out of (a) the copying, printing, publishing, displaying, performing, distributing or transmitting of such advertisement; (b) any violation of the CAN-SPAM Act or other laws relating to Advertiser’s advertisements, including, but not limited to, commercial messages e-mailed on Advertiser’s behalf by The New Yorker; (c) the loss, theft, use, or misuse of any credit/debit card or other payment, financial, or personal information; (d) the products and/or services promoted, sold, presented and/or contained in Advertiser’s advertisements; and/or (e) a breach or alleged breach of its covenants, warranties and obligations under these advertising rate card contract terms and conditions. If the The New Yorker participated in the creation of an advertisement, The New Yorker will indemnify Advertiser in connection with potential claims relating thereto only to the extent it has agreed to do so in writing.

J.   Responsibility for Payment of Advertising Bills

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. Advertiser and its Agency, if there be one, each agrees to be jointly and severally liable for the payment of all bills and charges incurred for each advertisement placed on Advertiser’s behalf. Advertiser authorizes The New Yorker, at its election, to tender any bill to Agency, and such tender shall constitute due notice to Advertiser of the bill and such manner of billing shall in no way impair or limit the joint and several liability of Advertiser and Agency. Any bill tendered by The New Yorker shall constitute an account stated unless written objection thereto is received by The New Yorker within ten (10) days from the rendering thereof. Payment by Advertiser to Agency shall not discharge Advertiser’s liability to The New Yorker. The rights of The New Yorker shall in no way be affected by any dispute or claim between Advertiser and Agency. Advertiser and Agency agree to reimburse The New Yorker for its costs and attorneys’ fees in collecting any unpaid advertising charges. Advertiser confirms that it has appointed Agency, if one is specified, to be its authorized representative with respect to all matters relating to advertising placed on Advertiser’s behalf with the understanding that Agency may be paid a commission.

K.  No Assignment of Advertising

Advertiser and its 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 The New Yorker, nor may Advertiser or Agency authorize any others to use any advertising space.

L.   Republication of Advertisements

Advertiser and Agency agree that any submitted advertisements Published in a Publisher Service, may, at The New Yorker’s option, be republished, re-performed, retransmitted, archived or otherwise reused by The New Yorker or its agents in any form in whole or in part in all media now in existence or hereafter developed, whether or not combined with material of others. The copyright in any advertisement created by The New Yorker is owned by The New Yorker and may not be otherwise used by Advertiser or third parties without The New Yorker’s prior written consent.

M.   Advertising Rates

The New Yorker’s Magazine and Digital Edition rates contained in advertising orders that vary from The New Yorker’s published rates shall not be binding on The New Yorker and the advertisements ordered may be inserted and charged for at the actual schedule of The New Yorker’s applicable published rates. The New Yorker’s Magazine and Digital Edition rates and units of space are effective with the January 6, 2014 issue. Announcement of any changes in such rates will be made thirty (30) days in advance of the closing date for the first issue affected by such new rates. Advertising in issues thereafter will be at the rates then prevailing. Rates for The New Yorker’s Websites, Emails and non-Digital Edition applications (i.e., The New Yorker’s applications other than Digital Editions) contained in advertising orders that vary from the rates established by The New Yorker for Advertiser shall not be binding on The New Yorker and the advertisements ordered may be inserted and charged for at the actual schedule of rates. Announcement of any changes in The New Yorker’s rates for its Websites, Emails and/or non-Digital Edition applications will be made thirty (30) days in advance of the first advertisements affected by such new rates. Advertisements Published thereafter will be at the The New Yorker’s applicable rates then prevailing.

N.  Rate Base Guarantees

Rate base guarantees for The New Yorker’s Magazines and Digital Editions are made on an annual twelve month average.

O.  Terms of Sale

An agency commission of fifteen percent (15%) will be allowed for recognized agencies. Payment for all advertising and services is due thirty (30) days from the date of invoice. All advertising production fees (if any) shall be billed and are immediately due in full within the first month of the advertising campaign. Interest may, at The New Yorker’s discretion, be charged at a rate of 1.5% per month on past due balances. The New Yorker may at its option require cash in advance or otherwise change payment terms.

P.  Choice of Law and Forum

All issues relating to advertising will be governed by the laws of the State of New York applicable to contracts to be performed entirely therein. Any action brought by Advertiser against The New Yorker relating to advertising must be brought in the state or federal courts in New York, New York. The parties hereby consent to the jurisdiction of the state or federal courts in New York, New York in connection with actions relating to advertising, including, but not limited to, actions to collect amounts due for advertising.

Q.  Disclaimer

The New Yorker DISCLAIMS ALL WARRANTIES AND/OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES FOR NONINFRINGEMENT, ACCURACY, AVAILABILITY, UPTIME, MERCHANTABILITY AND/OR FITNESS FOR ANY PARTICULAR PURPOSE IN CONNECTION WITH THE DISPLAY, PERFORMANCE AND TRANSMISSION OF ADVERTISEMENTS ON PUBLISHER’S SERVICES. Without limiting the generality of the foregoing, The New Yorker disclaims all warranties and guarantees with respect to its Services, including, without limitation, warranties and/or guarantees relating to: (a) the positioning or placement of advertisements on the Services, (b) advertising results on the Services; and (c) the accuracy of audience data, including, but not limited to, audience demographic data, audience size/reach data, etc. with respect to the Services.

R.  Entire Agreement

The foregoing terms and conditions (and the Additional Terms set forth below) shall govern the relationship between The New Yorker and Advertiser and/or Agency. The New Yorker has not made any representations to Advertiser or Agency that are not contained herein. Unless expressly agreed to in writing and signed by an officer or senior executive of The New Yorker, no other terms or conditions in contracts, orders, copy, or otherwise will be binding on The New Yorker. Failure by The New Yorker to enforce any of these provisions shall not be considered a waiver of such provision.

ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO PUBLISHER’S WEBSITES, APPS AND EMAILS

For the purpose of clarification, the terms and conditions set forth in Sections A through R above apply to all advertisements Published in any Publisher Service. In addition, the following terms and conditions set forth in Sections S through Y below (“Additional Terms”) shall apply to all advertisements Published on The New Yorker’s Websites, Apps and Emails as provided below. To the extent the Additional Terms directly conflict with or are inconsistent with Sections A through R above, the Additional Terms shall govern with respect to The New Yorker’s Websites, Apps and Emails.

S.  Impression Guarantees and Calculations

The New Yorker makes no guarantee or representation as to the quantity and/or quality of visits, impressions, circulation, or other usage of The New Yorker’s Websites, Apps or Emails or of the advertisement, or as to the use of any particular tracking or information-gathering devices, unless The New Yorker expressly agrees otherwise in writing. Advertiser and Agency acknowledge and agree that advertisements and ad impressions Published on The New Yorker’s Websites, Apps and/or Emails may be viewed by end users located in and/or outside the United States. In addition, all impressions and/or other measurements of advertisements for The New Yorker’s Websites, Apps and Emails shall be based solely on The New Yorker’s calculations for its Websites, Apps and Emails. Unless otherwise agreed to in writing by The New Yorker, The New Yorker will bill for the advertising on The New Yorker’s Websites based on such Websites’ own ad delivery numbers (“DFP numbers”); and, if applicable, The New Yorker has the right to bill for advertising in The New Yorker’s Apps and Emails based on its DFP numbers. In the event The New Yorker and Advertiser agree in writing that certain ads will be billed based on ad delivery numbers other than the applicable Website’s (and/or Apps’ or Emails’) own DFP numbers (i.e., third party numbers), The New Yorker will bill for such ads based on such third party numbers as long as the delivery discrepancy from third party numbers and DFP numbers is less than ten percent (10%). In the event that a difference of ten percent (10%) or more arises, both The New Yorker and Advertiser/Agency agree to use reasonable efforts to reconcile the difference and come to a mutually agreed upon solution.  If an agreement cannot be reached or if Advertiser fails to provide its third party ad delivery numbers within ten (10) business days after the end of each month of its ad campaign, The New Yorker reserves the right to bill Agency/Advertiser at a delivery rate of ninety percent (90%) of DFP numbers. To the extent The New Yorker fails to provide Advertiser with the number of impressions guaranteed (if applicable) on its Websites, Apps or Emails, Publisher will provide as a sole remedy a make-good, by extending the order beyond the contracted advertising flight period until the remainder of the guaranteed impressions are delivered. For purposes of clarification, Advertisers that request a special billing schedule or an upfront bill will not receive refunds/adjustments in the case of under-delivery of guaranteed impressions (if applicable).

T.  Errors in or Omissions of Advertisements

In the event of The New Yorker’s errors in or omissions of any advertisement(s) on its Websites, Apps or Emails (including, but not limited to, errors or omissions involved in converting Advertiser’s ads into an App), The New Yorker’s sole liability shall be limited to a credit of the amount paid attributable to the space of the error/omission (in no event shall such credit exceed the total amount paid to The New Yorker for the advertisement), and The New Yorker shall have no liability unless the error/omission is brought to The New Yorker’s attention no later than 5 days after the advertisement is first Published. However, if a copy of the advertisement was provided or reviewed by Advertiser, The New Yorker shall have no liability. In no event will The New Yorker have any liability for errors in key numbers.

U.  Restrictions on Advertiser’s Ability to Cancel Advertising Orders

Orders for all advertising units on The New Yorker’s Websites, Emails and non-Digital Edition applications are non-cancellable less than thirty (30) days prior to the start of advertising campaign. In any event, Advertiser will be responsible for the cost of any work performed or materials purchased on behalf of Advertiser, including the cost of services.

V. Additional Advertiser Warranties; Indemnification

In addition to the warranties set forth in Section I above, Advertiser and its Agency, if there be one, each represent and warrant that: (i)  none of the advertisements, ad tags (if any) or any other materials provided to The New Yorker for display on its Websites, Apps or Emails cause the download or delivery of any software application, executable code, malware, any virus or malicious or social engineering (e.g., phishing, etc.) code or features; and (ii) it will not conduct or undertake, or authorize any third party to conduct or undertake, any unlawful or improper actions in connection with the Websites, Apps or Emails, including, but not limited to, generating automated, fraudulent or otherwise invalid clicks or impressions on The New Yorker’s Websites, Apps or Emails, or collecting data contrary to applicable laws or regulations or The New Yorker’s Privacy Policy and/or these terms and conditions or The New Yorker’s Third Party Data Collection Policy (referenced in Section Y below); and (iii) it will comply with all applicable self regulatory behavioral targeting principles, including, but not limited to, the Digital Advertising Alliance and Network Advertising Initiative self regulatory behavioral targeting principles. In addition to the indemnification obligations of Advertiser/Agency set forth in Section I above, Advertiser and its Agency, if there be one, each agrees jointly and severally to defend, indemnify and hold harmless The New Yorker, its parent, subsidiaries and affiliates, and each of their officers, directors, members, employees, contractors, licensees, agents, representatives successors and assigns against any and all Losses (as defined in Section I above) that may arise from or relate to: (a) the linkage of any advertisement on The New Yorker’s Service to other material; or (b) a breach or alleged breach of Advertiser’s warranties set forth in this Section V.

W.  Additional Disclaimer

In addition to the disclaimers set forth in Section Q above, and without limiting the generality of the foregoing disclaimers, The New Yorker disclaims all warranties and guarantees with respect to its Websites, Apps and Emails, including, without limitation, warranties and/or guarantees relating to: (a) the availability, uptime and delivery of any impressions and/or advertisements on any of The New Yorker’s Websites, Apps or Emails; and (b) the quantity, quality or frequency of clicks or click-through rates of advertisements on the Websites, Apps and Emails. Advertiser acknowledges that third parties other than The New Yorker may generate automated, fraudulent or otherwise invalid/improper impressions, conversions, inquiries, clicks or other actions on Advertiser’s advertisements displayed on The New Yorker’s Websites, Apps or Emails. As between Advertiser and The New Yorker, Advertiser accepts the risk of any such improper actions. Advertiser’s exclusive remedy for such suspected improper actions is for Advertiser to request a refund relating to its impacted advertisements in the form of advertising credits on the applicable Website, App or Emails within thirty (30) days from the end of the calendar month in which such advertisement is initially displayed on the applicable Website, App or Emails. Any advertising credit refunds in connection with the Advertiser’s aforementioned requests are within the sole discretion of The New Yorker. 

X.  CAN-SPAM

Advertiser and Agency understand that advertisements and/or other commercial messages sent on its behalf by The New Yorker via Email may be governed by federal, state and local laws, rules and regulations, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and any acts related thereto, and including the interpretations thereof by the FTC or other governmental authorities (collectively, the “CAN-SPAM Act”) and state “Do Not E-mail” registries. Advertiser agrees to comply with all such applicable laws, rules and regulations. Without limiting the generality of the foregoing, Advertiser shall fulfill all obligations of a “Sender” as specified in the CAN-SPAM Act, unless The New Yorker agrees in writing to be designated as the “Sender”. In either case, Advertiser agrees to comply with The New Yorker’s policies intended to comply with the CAN-SPAM Act.

Y.  Data Collection

To the extent Advertiser and/or Agency collects or obtains data from any The New Yorker owned or operated Service, whether collected or received via an advertising unit, widget, pixel tag, cookie, clear gif, HTML, web beacon, script or other data collection process, including without limitation “clickstream” or “traffic pattern” data, or data that otherwise relates to usage of the Service, user behavior, and/or analytics, Advertiser and/or Agency is subject to the then-current version of The New Yorker’s Third Party Data Collection Policy, which is incorporated herein by reference (a copy of which is available upon request).

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