The sale or provision of any goods or services by the Publisher of this website Everything Colorado doing business as Everything Colorado, including without limitation, advertisements, rich media banners, marketing interfaces, digital content sponsorships, digital Services, commercial print orders or other goods or services (collectively, “Services”) to any customer, including any advertiser or advertising agency (hereafter, an “Advertiser”) shall be subject to these general terms and conditions (the “General Terms and Conditions”). Unless otherwise mutually agreed in writing, any agreement between Publisher and Advertiser for Services (a “Service Agreement”) shall be deemed to include these General Terms and Conditions. These General Terms and Conditions are in lieu of and replace any and all terms and conditions set forth in any documents issued or to be issued by Advertiser, including, without limitation, any purchase orders. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY ADVERTISER AT ANY TIME ARE HEREBY OBJECTED TO BY PUBLISHER, SHALL BE WHOLLY INAPPLICABLE TO ANY SERVICE PROVIDED BY PUBLISHER AND SHALL NOT BE BINDING IN ANY WAY ON PUBLISHER. No waiver or amendment to these General Terms and Conditions shall be binding on Publisher unless made in a writing expressly stating that it is such a waiver or amendment and signed by an authorized agent of Publisher.
(a) Right to Reject. Publisher has the right, in its sole and absolute discretion, to reject any advertisement or any portion thereof. Publisher’s publication of an advertisement shall not affect its right to reject such advertisement for further publication thereafter.
(b) Effect of Submission of Ads. Submission of an advertisement to Publisher does not constitute a commitment by Publisher to publish the advertisement. Publisher accepts advertising only by publishing such advertisement. By submission of an advertisement to Publisher, Advertiser acknowledges that (i) these General Terms and Conditions apply to all Services of Publisher unless modified, superseded or otherwise altered by a written instrument signed by an authorized agent of Publisher, and (ii) insertion orders containing disclaimers are not acceptable and are not legally binding or valid.
(c) Alteration of Ads. Publisher reserves the right to alter any advertising material in order for the material to conform to its current specifications. (d) Proofs. Publisher may furnish to Advertiser, upon written request, a proof of the advertisement as set for insertion and shall make all corrections and changes that Advertiser may request, provided that Advertiser returns such proof with all corrections or changes noted. If the proof is not returned, Publisher may regard the advertisement as correct and may publish it. In that event, Publisher shall not be liable for any errors that may exist therein. Advertiser accepts liability for any proofs changed, corrected or approved by agents of Publisher on behalf of Advertiser and waives any claim for error against Publisher or its agent.
(e) Errors. Publisher shall not be responsible for proofreading advertising copy or other material supplied by Advertiser for publication, or for errors contained in the advertising or other material supplied by Advertiser and published without alteration, unless a proof is returned. It is Advertiser's responsibility to inform Publisher of errors in advertisements.
(f) Omissions. Publisher's failure to insert any advertisement in any issue of any publication shall be deemed immaterial, and shall not be considered a breach by Publisher of any Service Agreement. If copy for an advertisement is submitted in accordance with the provisions of a Service Agreement with Publisher and that copy or insert is omitted from one or more publications of Publisher in which it was to be published, Publisher’s sole obligation and Advertiser's sole remedy shall be for Publisher to publish the identical advertisement within a reasonable time after the date of such omission for the same length of time in the publication as described in the Service Agreement.
(g) Acceptance of Services. All claims pertaining to errors or omissions in Services or for shortages or delays must be made by Advertiser in writing within thirty (30) days after the scheduled publication in which the Services appeared or were scheduled to appear or the Services of Publisher shall be deemed accepted by Advertiser; 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 advertisements and bill Advertiser for all Services that are not canceled prior to the deadline. Advertiser may be subject to a cancellation charge when such cancellation results in production delays.
(i) Classification of Ads. Publisher will not permit advertisements to be misclassified by Advertiser. Publisher reserves the right to classify ads under the proper heading.
(j) Truth in Advertising. Advertisers who are dealers, merchants or businesses must carry their corporate, business or trade names in all ads offering to buy, sell, rent or trade property or services and shall not advertise in a manner that is misleading to the public.
(k) Conversion of Ads to Other Formats. Publisher reserves the right to convert all advertisements published in print into digital and audio-text formats within other Publisher products, including the right to publish such advertisements electronically on the Internet.
2. Editorial Policy.
Advertising purchases, unless specifically designated and contracted as articles, are not associated with editorial coverage in the publications in any way. It is understood that advertising is solely for display space, and advertisers are not purchasing a write up or other editorial coverage in any publication. Unless specifically stated as such in a signed service agreement and accepted by publisher, editorial coverage is written independent of advertising purchases and is intended to communicate a comprehensive and objective view of every business, regardless of their advertising status, in each publication.
3. Rate Card.
All Service Agreements are subject to the rates and conditions set forth in the Rate Card of Publisher as issued from time to time. Publisher reserves the right to revise rates and to modify the conditions contained in the Rate Card of Publisher with thirty (30) days prior notice to Advertiser.
4. Advertisers Right to Cancel.
Individual purchases by Advertiser defined in a Service Agreement with Publisher may be cancelled but no later than fourteen (14) days prior to published advertising deadlines. No cancellation will be allowed after the advertising is published in print or on the internet and once published it is acknowledged that the full amount for the advertisement is owed to Publisher. All advertisements will run for a full year in the publications identified in the Service Agreement unless other terms are stipulated in writing. Once an advertisement is live in the Publication identified in the services agreement, the service is complete and the full amount established in the Service Agreement is owed, irrespective of the payment terms provided by the Publisher. If for any reason the Advertiser chooses to discontinue running their advertising in the Publication before the full year is over, Advertiser still owes the full amount due set forth in the Service Agreement. It is acknowledged that payment terms stipulated in the Service Agreement are established for the convenience of the advertiser and in no way imply that the payments are for running the advertisements for a period of time. In the event of any cancellation, ad layout charges will be billed at publisher’s discretion based upon the amount of work performed.
5. Publisher’s Right to Cancel.
Publisher may cancel a Service Agreement at its option upon written notice to Advertiser upon the occurrence of any of the following: (i) Advertiser's failure to pay any amounts owed to Publisher within thirty (30) days of when due; (ii) if Advertiser becomes insolvent or files an assignment for the benefit of creditors; (iii) if any bankruptcy proceeding is commenced by or against Advertiser; (iv) if Advertiser assigns or attempts to assign, in whole or in part, its rights under the Service Agreement without prior written consent of Publisher; (v) breach of any representation or warranty of Advertiser or the failure by Advertiser for any reason to carry out its obligations under a Service Agreement; and Should Publisher cancel a Service Agreement for cause as defined above, the full amount defined in the Service Agreement is due publisher, irrespective of the amount of time the advertisement was run.
Discounts may be given or charges may be waived for various reasons, such as early payment or rate reductions based upon the purchase of ad packages or a volume of advertising. If an Advertiser chooses not to perform in accordance with the agreements upon which a particular charge is waived or a discount is given, the Advertiser will be responsible for paying the waived charge or the amount of the discount taken.
7. Representations and Warranties of Advertiser.
Advertiser hereby represents and warrants that it assumes full responsibility for the content of all advertisements published pursuant to written or unwritten Service Agreements; that such advertisements shall contain no libelous, tortious or unlawful statements; and that the publication thereof shall not constitute unfair competition, unfair trade practice, infringement of copyright, trademark, trade name or other proprietary or statutory right, or an invasion of privacy of others. Advertiser further represents and warrants that all products and services referred to in the advertisements to be published are of merchantable quality and are as represented in such advertisements; that the advertising, sale and furnishing thereof as contemplated in such advertisements complies with all applicable laws; and that all consents required by law or agreement as a condition to the publication of the advertisements shall have been obtained prior to the submission of such advertisements to Publisher for publication.
8. Indemnification of Publisher.
Advertiser shall indemnify and hold harmless Publisher and its affiliates, and their respective officers, directors, owners, employees and agents against any and all liability, loss, damage, cost or expense, including attorney's fees and expenses, resulting from any claim or litigation based upon any alleged facts which, if true, would constitute a breach by Advertiser of any of the foregoing representations and warranties of Advertiser. Publisher shall have the right to defend any suit through counsel of its own choice and to make Advertiser a party to such suit.
9. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY SET FORTH WITHIN THESE GENERAL TERMS AND CONDITIONS, PUBLISHER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY PRODUCTS OR SERVICES PROVIDED.
10. Limitation of Liability.
IN NO EVENT SHALL PUBLISHER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMES OR FOR LOST SALES OR PROFITS BASED ON BREACH OF WARRANTY, BREACH OF AGREEMENT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED AS TO THE POSSIBILITY OF SAME. In no event shall Publisher’s liability for the performance or nonperformance of Services, or otherwise, exceed the amount actually paid to Publisher by Advertiser for the defective Services at issue. The foregoing is intended as a complete allocation of the risks between the parties. Because the bargain struck and the price paid for Services reflect such allocation this limitation upon remedies will not have failed of its essential purpose.
11. Payment Terms.
Advertiser shall pay all invoices upon presentment. Payment is due in full within the terms identified within invoice. Payment of account is not dependent upon receipt of tear sheets, either physical or electronic. Advertiser waives any dispute regarding any item included in an invoice unless notice of such dispute is provided to Publisher in writing within thirty (30) days of the invoice date. All prices are stated, and all payments must be made in U.S. Dollars. Payments made by Advertiser and not honored (NSF Check and Bank Draft) by the bank are subject to a $25.00 charge.
12. Delinquent Accounts.
When any part of an account for Services becomes delinquent (30 days from date of invoice), then the entire amount owed shall become due. In this event, Advertiser shall pay for Services actually used according to the rate earned, per Rate Card in effect, at the time of the delinquency. For past due accounts, Publisher also reserves the right in its discretion to do one or more of the following, in addition to any other remedy it may have: (a) to require prepayment of all existing and future Services until the balance has been paid in full and satisfactory conditions allow for the reinstatement of credit, (b) to suspend Services (including without limitation publishing of advertisements, or placing inserts in publications) until the account becomes current, or (c) terminate the Service Agreement without notice. Advertiser agrees to pay interest on all delinquent amounts due Publisher at the rate of 1½% per month (18 percent annum), or the maximum rate allowed by law, whichever is less, until paid in full. In addition, Advertiser shall be liable to Publisher for all collection costs, including attorney's fees, incurred by Publisher to effect collection of Advertiser’s account.
Advertiser is responsible for and agrees to pay all sales, use, value added, excise and all other federal, state or local taxes and customs duties associated with the Services, however designated, except for taxes on Printer’s net income or taxes for which Advertiser provides Publisher with a proper tax exemption certificate.
14. Ad Agencies.
Advertiser and its Advertising Agency shall be jointly and severally liable for the payment of all bills and charges made. Advertiser authorizes Publisher, at Publisher’s election, to tender any invoice or bill to Advertiser’s Advertising 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 its Advertising Agency. Payment or nonpayment by Advertiser to its Advertising Agency shall not discharge Advertiser’s or its Advertising Agency’s liability to Publisher. The rights of Publisher shall in no way be affected by any dispute or claims as between Advertiser and its Advertising Agency.
15. Force Majeure.
Publisher shall not be responsible or liable for any damages to Advertiser for a breach of any Service Agreement or the failure to perform any Services if such breach or failure is due to any act of God, governmental authority, or war, terrorist act, riot, labor stoppage or slowdown, fire, flood, severe weather, earthquake, accident, telecommunications or network failures, failure of the Internet, electrical outages, or any cause beyond Publisher's control (any such event a "force majeure event"). Advertiser at its election may have any Services which Publisher failed to perform due to a force majeure event (a) performed in a future issue of the publication (e.g., publication or insertion of an advertisement in a future issue of the publication in which the advertisement was to appear), subject to these General Terms and Conditions, or (b) to forgo the Services and not be charged by Publisher for such Services.
Nothing contained in any Service Agreement or in these General Terms and Conditions shall be construed to place Publisher and Advertiser in a relationship as partners, joint venturers, or principal and agent, respectively.
17. Governmental Regulations.
The terms of any Service Agreement and these General Terms and Conditions are at all times subject to governmental proclamations, laws and regulations now or hereafter in effect, pertaining to priorities, allocations, prices and other such acts affecting the perform of Services by Publisher.
These General Terms and Conditions shall be deemed severable. In the event that any provision is determined to be unenforceable or invalid, such provision shall nonetheless be enforced to the fullest extent permitted by applicable law, and such determination shall not affect the validity and enforceability of any other remaining provisions
Insertion orders and orders for Services are accepted by Publisher subject to these General Terms and Conditions. Terms, conditions, rates or agreements not set forth herein or in then-current rate schedules are not binding on Publisher. Customer Service Representatives and Account Managers of Publisher are not authorized to modify these General Terms and Conditions. The provisions of sections 1, 8 through 15, 17, 19 and 20 of these general Terms and Conditions shall survive any cancellation, termination or expiration of any Service Agreement. Any Service Agreements and these General Terms and Conditions shall be governed and construed in accordance with the laws of the state of Nevada, without regard to its conflicts of law principles. The parties agree to promptly and voluntarily submit to the exclusive jurisdiction of the Nevada state courts located in Carson City, NV with respect to any legal proceedings arising out of any Service Agreement or these General Terms and Conditions, waiving all defenses with respect to jurisdiction, forum and venue. Any action against Publisher, including without limitation, claims pertaining to defects, errors or omissions in the goods or Services provided by Publisher, warranty claims, or errors in billing, must be brought by Advertiser within one (1) year of when the cause of action arose against Publisher, regardless of Advertiser’s lack of knowledge of the claim. These General Terms and Conditions, together with terms and conditions set forth in any related Service Agreement (a) contain the entire agreement between Publisher and Advertiser relating to the Services, and (b) shall be binding upon and inure to the benefit of the heirs, successors and permitted assigns of the parties. The paragraph headings contained herein are for the convenience of reference only and shall not be construed so as to affect the interpretation or construction of any substantive provision hereof.
These General Terms and Conditions apply to Services provided by Everything Colorado and all of its affiliates.