THE ADVERTISER OR ITS REPRESENTATIVE AGENCY (HEREINAFTER CALLED THE “ADVERTISER”) HEREBY PLACES A REQUEST FOR ADVERTISING IN ANY AMERICAN COLLEGE OF APOTHECARIES PUBLICATION SUCH AS THE VOICE OF INDEPENDENT PHARMACY, OR ACA E-MAILS OR WEBSITE (HEREINAFTER CALLED THE “PUBLICATION”) PURSUANT TO THIS CONTRACT, AND IF THE PUBLISHER (HEREINAFTER CALLED “ACA”) ACCEPTS THIS OFFER, THE ADVERTISER AND ACA HEREBY AGREE THAT THE CONTRACT SHALL BE GOVERNED BY THE FOLLOWING CONDITIONS:
ADVERTISING PAYMENT POLICY
(a) All payments are due within 30 days of invoice date. A 5% penalty will be imposed on unpaid invoices after 30 days from invoice due date. Interest of 1.5% per month will be charged on invoices after 30 days from invoice date.
(b) ACA will hold the Advertiser liable for all payments related to advertising under this contract. All court costs, collection fees and reasonable attorneys’ fees incurred by ACA in enforcing payment under the terms of this contract and corresponding rate card herein shall also be borne by the Advertiser.
(c) ACA reserves the right to cancel this contract at any time upon default or anticipatory default by the Advertiser in the payment of accounts stated or in the event of any other substantial breach or anticipatory breach of this contract by the Advertiser. Upon such cancellation, charges for all advertising published and all other charges payable under this contract shall become immediately due and payable by the Advertiser upon rendition of bills therefore. Advertiser shall make payment to ACA within 30 days of receipt of billing.
(d) ACA reserves the right to hold all agencies responsible for monies due to the Publisher. The agency agrees that it is acting for the client, and as such binds itself and the client to the terms and conditions listed in this contract. ACA may look to both Agency and Advertiser for payment.
(e) The Signee of this contract guarantees that he or she is authorized to purchase and advertise on behalf of the listed company and therefore guarantees full payment.
(f) ACA represents that all its rates are published on an official rate card which is periodically updated by ACA and given a new effective date.
(g) ACA’s official rate card with rates in effect at the time a requested advertisement is published by ACA shall be understood to mean the schedule of advertising rates of ACA upon which this contract is based. The Advertiser hereby acknowledges that it is aware of the official rates in effect at the time the Advertising Contract is executed and understands that it may request an updated rate card in writing from ACA at any time.
(h) Any and all negotiated advertiser discounts will be communicated in writing by ACA to the Advertiser.
OMISSION OF ADVERTISING
(i) Failure by ACA to insert in any particular issue or issues the advertising under this contract invalidates the order for insertion in the missed publication but shall not constitute a breach of contract. ACA shall have the right to omit any advertisement when the space allotted to advertising in the issue for which such advertisement is ordered has all been taken, or where there is a substantial change in the product of subject of the advertisement which may conflict with ACA’s general policy on advertising. ACA may also limit the size and or position of an advertisement in any issue.
(j) ACA is not liable for delays in delivery and/or non-delivery in the event of an act of God, action by any government or quasi-government entity, fire, flood, insurrection, riot, explosion, embargo, strikes, labor or material shortage, transportation disruption of any kind, work slowdown, printer error, or any condition beyond the control of ACA affecting production or delivery.
A sample page containing a published version of the advertisement will be provided only upon written request from the Advertiser. Failure to provide tear sheets is not a breach of contract by ACA.
(k) Advertisers may not cancel orders for, or make changes in, advertising after the closing dates of the particular Publication.
(l) ACA /ACVP is not responsible for errors or omissions in any advertising materials provided by the Advertiser (including errors in key numbers) or for changes made after closing dates.
(m) ACA may reject or cancel any advertising for any reason at any time.
(n) No conditions, printed or otherwise, appearing on contracts, orders or copy instructions which conflict with, vary, or add to these Terms and Conditions or the provisions of the Publication’s official rate card will be binding on ACA and to the extent that the Terms and Conditions contained herein are inconsistent with any such conditions, these Terms and Conditions shall govern and supersede any such conditions.
(o) Advertisements simulating the Publication’s editorial material in appearance or style or that are not immediately identifiable as advertisements are not acceptable. ACA will place the words “Paid Advertisement” within or adjacent to all advertorials which resemble editorial matter.
(p) ACA has the right to insert the advertisement anywhere in its Publications at its discretion unless the advertiser purchases a premium placement position or is otherwise stated in writing by ACA. For all other advertising, any condition on contracts, orders, or copy instructions involving the placement of advertising (such as page location, competitive separation or placement facing editorial copy) will be treated as a positioning request only and cannot be guaranteed. ACA’s inability or failure to comply with any such condition shall not relieve the Advertiser of the obligation to pay for the advertising.
(q) Advertisers and their agencies assume liability for all content (including text representation and illustration) of advertisements printed and assume full responsibility for any resulting claims against ACA. ACA assumes no responsibility if, for any reason, it becomes necessary to omit an advertisement.
(r) ACA shall have no liability whatsoever by reason of error or other wrongful or harmful conduct for which it may be responsible in connection with any advertisement beyond liability to give the Advertiser a one-time credit for a future advertisement of similar size. Without limiting the foregoing, under no circumstances shall ACA be liable for indirect or consequential damages, including lost profits, whether foreseeable or not.
(s) The sole forum for the litigation of claims between ACA and the Advertiser is a State or Federal court in or for Memphis, Tennessee, and Advertiser agrees to submit to the venue and jurisdiction of the same