The sale or provision of any goods or services by Mass Transit Network BV, or by any of its affiliates (collectively, “Publisher”), including without limitation, business memberships, advertisements, inserts, digital services, social media services, direct marketing 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 contract or 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 to Publisher unless made in writing expressly stating that it is such a waiver or amendment and signed by an authorized agent or Publisher.
1. Business Memberships, Advertisements and Services. For purposes of these General Terms and Conditions, "business membership", “advertisement” or “ad” means each advertisement placed or ordered by or on behalf of Advertiser in any of the Publications (including, in the case of online advertising, advertising data received either from Advertiser or from any source designated by Advertiser for transmission of data); “Advertiser Content” means each advertisement and all material (including but not limited to text, illustrations and photographs) submitted by or on behalf of Advertiser to Publisher for publication and/or delivery, and all content (if any) linked to any publication of Publisher by means of any hyperlink with any website designated by Advertiser; and “Publication” means any print publication, or any online publication, service or website 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 in a Publication shall not affect its right to reject such advertisement for further publication.
(b) Effect of Submission of Ads. Submission of an Advertisement to Publisher does not constitute a commitment by Publisher to publish the Advertisement in any Publication. Publisher accepts advertising only by publishing such advertisement. By submission of an advertisement to Publisher, Advertiser acknowledges that 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.
(c) Alteration of Ads. Publisher reserves the right to alter any advertising material in order for the material to conform to its current mechanical specifications. The rates stated in the Service Agreement shall remain the same upon a reduction in the size of any advertisement as long as the advertisement maintains the same proportion of the entire page.
(d) Proofs. If the Advertiser furnishes advertising copy to Publisher according to published advertising deadlines, Publisher shall furnish to the Advertiser a proof of the advertisement as set for insertion and shall make all corrections and changes that the Advertiser may request, provided that the Advertiser returns such proof with all corrections or changes clearly noted prior to published deadlines. If the proof is not returned before that time, Publisher may regard the advertisement so set as correct and may publish it. In that event, Publisher shall not be liable for any errors that may exist therein.
(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 the proof is returned in ample time for corrections to be made before the advertisement is published. If the Advertiser was not provided a proof of the advertisement and the ad contained a material error caused by Publisher, or if Publisher does not correct any timely and properly noted error, its liability shall be only for that portion of the cost of such advertisement as the space occupied by the error bears to the whole space occupied by such advertisement. Publisher’s responsibility will be limited to the first publication of the advertisement since it is the Advertiser’s responsibility to inform Publisher of errors in advertisements. In no event shall Publisher have any liability for immaterial errors.
(f) Omissions. Publisher’s failure to insert any advertisement in any issue of any Publication (including failure to run an insert on the designated publication date or running the wrong insert) shall be deemed immaterial, and shall not be considered a breach of any Service Agreement. Publisher shall not be liable for damages for any failure to insert or publish an advertisement. If copy for an advertisement or an insert is submitted in accordance with the provisions of a Service Agreement with Publisher and that copy or insert is omitted from one or more issues of the Publication 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 or an advertisement of the same size, or to place the insert, within a reasonable time after the date of such omission in a subsequent issue of the Publication.
(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; provided, however, that if Advertiser has knowledge of an error prior to publication and with respect to a production run of the Publication which could give rise to a claim and fails to advise Publisher in time to prevent the error, Publisher shall not be liable to Advertiser for any portion of the advertisement. 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 cancelled prior to the deadline. Advertiser may be subject to a cancellation charge when such cancellation results in production delays.
(h) Positioning of Ads. Publisher does not guarantee positioning of advertisements, is not liable for failure to meet positioning requirements, and is not liable for any errors in key numbers. Unless otherwise agreed in writing, Publisher will treat all position stipulations on insertion orders as nonbinding requests. Publisher will not consider any objections to positioning of an advertisement later than thirty (30) days after publication date. In the event Advertiser has paid a premium for a particular position, reimbursement for failure to publish in a particular position shall be limited to a refund of such premium paid by Advertiser.
(i) Placement Classification. Publisher will not permit ads to be misclassified by the Advertiser in classified sections. Publisher reserves the right to classify or reclassify ads under the heading it determines is proper.
(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 cannot advertise in a manner that is misleading to the public or violates any applicable law.
(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 Publications, including the right to publish such advertisements electronically on the Internet, or any other format now existing or hereafter invented.
(l) Preprints. Preprint Advertisers are billed based on actual distribution within the purchased advertising zones which may vary slightly on a particular day. Publisher will not be responsible, nor provide billing or rate adjustments, for shortages resulting from these variances, including variances due to errors in the insertion or distribution process, shortages in Advertiser’s delivery of preprints, Advertiser supplying overages when average circulation has been supplied to Advertiser, and inserts that are not within Publishers insert specifications. In the event Advertiser supplies preprints quantities in excess of supplied distribution quantity for ordered publication and date, Publisher reserves the right, in its sole discretion, to do any of the following: (a) insert surplus preprints into other publications of Publisher and bill Advertiser applicable rates per publication, (b) return surplus at Advertisers expense, or (c) destroy surplus without liability to Advertiser for cost of surplus.
(m) Ad Servers. Publisher may use third party ad servers for its ad serving and reporting functions and to track delivery of internet impressions. Such ad servers may vary depending on Publisher’s internet site being tracked and are subject to change at Publisher discretion, and such applicable ad servers(s) shall be the official counter(s) for determining impressions delivered. Unless Publisher permits tracking of delivery through Advertiser’s proprietary or subcontracted third party ad server whose identity is set forth in an applicable agreement with Publisher as the “Permitted Ad Server”, Advertiser’s proprietary or third party ad server reporting is not permitted. Certain types of advertising are not permitted to be tracked by other ad servers and therefore other ad servers will not be permitted in such circumstances. Advertiser may not substitute the Permitted Ad Server specified in an agreement with publisher without Publisher’s written consent. In the event a Permitted Ad Server is used, Publisher and Advertiser agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide placement-level activity reports to each other. If Publisher’s ad server measurements exceed those produced by the Permitted Ad Server by more than 10% over the invoiced period, Advertiser will facilitate a reconciliation effort between Publisher’s ad server and such Permitted Ad Server.
(n) Publisher’s Right to Alter Publications and Services. Publisher reserves the unlimited right, whenever and as often a Publisher chooses, to alter any one or more of its Publications and Services as it sees fit, including, without limitation, by (i) changing the name, format, position and/or subject matter of any of the Publications and Services and/or adding and/or discontinuing any sections, positions or pages thereof, (ii) changing service providers, platforms, data providers and/or the process by which Publisher receives Advertiser’s data and/or ads; and/or (iii) discontinuing or modifying any advertising rate or applicable terms.
(o) Materials Created by Publisher. Publisher retains all rights (including copyrights) in and to any and all advertisements and materials created by Publisher.
(p) User Information. Any user or usage data or information collected via Publisher web sites shall be the property of Publisher. Advertiser shall have no rights in such information by virtue of the Agreement.
(q) Technical Quality. Publisher shall not be responsible for any ad material that is not properly displayed or that cannot be accessed or viewed online because the material was not received by Publisher in the proper form, in a timely manner, or in an acceptable technical quality for display on the Publisher websites.
2. Contract Execution and Acceptance: For any Services Agreement to be effected and any contract rate to be in force, the Advertiser must execute a Service Agreement and the Advertising Manager of Publisher must accept the Service Agreement at the home office of Publisher in Maastricht in advance of publication. Space contracted for is to be used by the Advertiser exclusively, and for the Advertiser’s own present business, and cannot be sold, given or transferred in whole or in part in any way, at any time, to any other individual, firm or corporation. It is understood that no verbal conditions shall affect a Service Agreement and that advertising space run under a Service Agreement shall conform to the regulations set forth in the then applicable Advertising Rate Card of Publisher. A Service Agreement is not assignable, in whole or in part, by the Advertiser without the prior written consent of Publisher.
3. Rates and Regulations: All Service Agreements are subject to the rates and regulations set forth in the Advertising Rate Card of Publisher as issued from time to time. Advertiser acknowledges receipt of the current Advertising Rate Card of Publisher.
4. Rate Revision: Mass Transit Network BV reserves the right to revise rates and to modify the regulations contained in the Advertising Rate Card of Publisher with thirty (30) days prior notice to the Advertiser, provided that the Advertiser agrees that Publisher may automatically increase its pricing to Advertiser at any time.
5. Advertiser’s Right to Cancel: The Advertiser shall have the right to cancel a Service Agreement without adjustment charges at any date upon which new rates are to be effective, by written notice to Publisher not less than ten 90 (days) prior to such effective date, provided that the Advertiser’s right to cancel the Service Agreement shall not apply to new rates based on increases in postal rates for any products delivered via mail. Cancellation of Service Agreement is subject to earned or short rates. Such adjusted charges shall be due and payable to Publisher upon presentation of an invoice to Advertiser.
6. Publisher’s Right to Cancel: Publisher may cancel a Service Agreement at its option upon written notice to the Advertiser upon the occurrence of any of the following: (i) the Advertiser’s failure to pay any amounts owed to Publisher within thirty (30) days of when due; (ii) if the Advertiser becomes insolvent or files an assignment for the benefit of creditors; (iii) if any bankruptcy proceeding is commenced by or against the Advertiser; (iv) if the 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 the Advertiser or the failure by the Advertiser for any reason to carry out its obligations under any Service Agreement with Publisher; and (vi) at any time upon thirty (30) days written notice by Publisher to the Advertiser. Should Publisher cancel a Service Agreement, no short rate will be used unless the Advertiser’s account is delinquent. Upon cancellation of a Service Agreement by Publisher, Advertiser shall immediately pay for all advertising published under the Service Agreement at the rate earned for the amount of space actually used according to applicable Publisher rate card in effect at the time of cancellation.
7. Service Agreement - Discounted Rates: Service Agreements accepted by Publisher within thirty (30) days of the first insertion will qualify for contract rates. Advertiser agrees to spend a specific Euro amount over a twelve (12) month period or to run a specific number of weeks during the year in exchange for lower advertising rates. Should the Advertiser elect to cancel a Service Agreement prior to the end of the contract period, all advertising run will be rebilled at the earned contract level. Should Advertiser run a sufficient volume of advertising to qualify for the next contract level, Advertiser will begin to receive the rate of the next level at the beginning of the month the new rate is earned. No refund will be administered.
8. Representations and Warranties of Advertiser: Advertiser hereby represents and warrants that it assumes full responsibility for all advertisements published pursuant to any Service Agreement and for all related Advertising Content; that Advertiser is solely responsible for any action to protect its ownership rights in the Advertising Content; that any advertisement or related Advertising Content conforms to all applicable laws; that the Advertiser has full ownership rights or necessary licenses to the advertisement and Advertising Content; that such advertisements and Advertising Content contain no libellous, tortuous or unlawful statements; and that the publication thereof by Publisher 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 pursuant to any Service Agreement 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 contract as a condition to the publication of the advertisements shall have been obtained prior to the submission of such advertisements to Publisher for publication.
9. Indemnification of Publisher: Advertiser shall indemnify Publisher and hold Publisher harmless against any and all liability, loss, 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 the 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 the Advertiser a party to such suit.
10. Disclaimer of Warranties by Publisher: PUBLISHER’S GOODS AND SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, WITHER EXPRESS OR IMPLIED, AND 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 UNDER ANY
11. Limitation of Liability: IN NO EVENT SHALL PUBLISHER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR LOST SALES OR PROFITS BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, 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 ANY SERVICE AGREEMENT, OR OTHERWISE, EXCEED THE AMOUNT ACTUALLY PAID TO PUBLISHER BY THE ADVERTISER UNDER THE SERVICE AGREEMENT. Except as provided in Section 1 above, Publisher shall not be liable for any damage arising out of or with respect to any failure to publish or timely publish an ad; any error in a published ad; the operation (or any failure in operation) of the Internet and/or any servers or systems comprising all or any portion thereof; or otherwise from the publication of any ad. Advertiser agrees that Publisher, its licensors, employees or agents do not warrant either the results to be obtained from publication of any ad, that any minimum level of audience or minimum number of impressions or click-through with respect to any ad or other Advertising Content, or that Publisher’s performance or any of its Services or Publications will be uninterrupted or error free.
Publisher does not warrant that any social media sites for which it performs Services will be without errors, defects, delays, omissions interruptions or losses, including loss of data. Advertiser acknowledges and agrees that Publisher has no control over the individuals using the Publications and makes no warranty regarding whether any individual will or is likely to copy any Advertiser Content. In no event shall Publisher’s liability for the performance or non-performance 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.
12. Payment Terms, Taxes and Delinquent Accounts. (a) Payment Terms. Advertiser shall pay all invoices upon presentment. Payment is due in full within the terms identified within the invoice, and if none are provided, within 30 days of 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 Euro's. (b) Taxes. Unless otherwise indicated in a Service Agreement, prices do not include, and 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 Publisher’s net income or taxes for which Advertiser provides Publisher with a proper tax exemption certificate. (c) Delinquent Accounts: When any part of an account for Services becomes delinquent, 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 at law or in equity: (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. Advertiser shall be liable to Publisher for all collection costs, including attorney’s fees, incurred by Publisher to effect collection of Advertiser’s account.
13. 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 non-payment 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.
14. Impossibility of Performance: Publisher shall not be responsible or liable for any damages to the Advertiser for a breach of a Service Agreement if the breach is due to a labor dispute, strike, war, terrorism, riot, insurrection, civil commotion, fire, accident, telecommunications or network failures, failure of the Internet, electrical outages, severe weather or storm, flood, earthquake, any act of God, or any other cause beyond Publisher’s control (any such event, a “force majeure event”). With respect to Services which Publisher failed to perform due to a force majeure event, Advertiser may elect (a) to have Publisher perform such Services in a future issue of the publication (i.e., 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. If Advertiser elects the latter option, the rate charged per line of advertising shall not be affected by the reduction in space used.
15. Relationship. 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 venture, or principal and agent, respectively.
16. 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.
17. Severability. 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.
18. Notices: All notices under any Service Agreement shall be in writing and delivered personally or mailed by mail, postage prepaid, addressed to the Advertiser at the address set forth in the Service Agreement, or to Publisher at PO BOX 529, 6200 AM, Maastricht, The Netherlands, Attn: Advertising Manager, or to such other addresses as the parties shall so indicate in compliance with this paragraph.
19. Miscellaneous. 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. The provisions of sections 1, 8 to 13, and 15 to 19 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 Kingdom of the Netherlands, without regard to its conflicts of law principles. The parties agree to promptly and voluntarily submit to the exclusive jurisdiction of the Netherlands in the Maastricht courts with respect to any legal proceedings arising out of any Service Agreement or these General Terms and Conditions, waiving all defences 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.