Advertising Terms & Conditions

1. Advertising. Subject to the following terms and conditions, Graco Supply Company d/b/a GracoRoberts (hereinafter referred to as, the “Company”) shall provide, and Advertiser shall purchase, the advertising package at the rate listed on the terms (the “Advertising Campaign”), which is incorporated herein by reference and made a part of this agreement (this “Agreement”).

2. Advertising Materials. In order to be published, Advertiser must provide all advertising materials for inclusion in the Advertising Campaign, such as digital ads, images, video, or other editorial or graphic content (the “Advertising Materials”) to the Company by the date(s) specified by the Company. All Advertising Materials must comply with the specifications stated in the Media Kit or as otherwise communicated by the Company to Advertiser.

3. Warranties and Representations. Advertiser represents that it is properly authorized to use, disclose, and publish the Advertising Materials. Advertiser warrants that its Advertising Materials comply with all applicable laws, rules, and regulations, and do not infringe on the rights of any third party, including but not limited to intellectual property rights and privacy rights.

4. Agencies. If this Agreement is entered into by an advertising agency (the “Agency”) on behalf of Advertiser, Advertiser shall remain solely responsible for all the terms and conditions of this Agreement.

5. Positioning. Except as otherwise expressly provided in this Agreement, positioning of Advertising Materials is at the sole and absolute discretion of the Company. Advertiser acknowledges that the Company has not made any guarantees with respect to readership, website usage statistics or levels of impressions for any advertising except where expressly stated. The Company may provide Advertiser with estimated readership or website usage only as a courtesy to Advertiser, and the Company shall not be held liable for any claims relating thereto.

6. Taxes. Prices do not include tax. In the event that any federal, state, or local taxes are imposed on the creation of advertising or on the sale of advertising, such taxes shall be assumed and paid by Advertiser.

7. Billing and Payment. The Company will bill Advertiser for each Advertising Campaign (or portion thereof) by sending Advertiser an invoice describing the amounts due and the services performed and/or deliverables delivered in connection with the Advertising Campaign (or portion thereof). Advertiser shall make payment in full in advance of the Advertising Campaign start date, or as otherwise stated in the invoice.

8. Interest on Late Payments. In the event that the account becomes past due, a service charge of 1.5% per month (18% per annum) will be added to all past due amounts until paid in full. In addition to such other remedies as it may have, in the event any amount remains overdue for thirty (30) days or more, the Company may: (a) immediately terminate its obligation to perform the advertising services under this Agreement with written notice to Advertiser, (b) immediately demand payment of the full cost of the Advertising Campaign from Advertiser; and (c) take any legal action to collect the overdue amounts. Advertiser shall reimburse the Company for all expenses incurred in connection with the collection of amounts payable, including court costs and attorneys’ fees.

9. Rejection/Removal of Advertising Materials. The Company reserves the right, within its sole and absolute discretion, to reject or remove, at any time, any Advertising Materials that do not comply with the Media Kit guidelines, the Company’s policies, or applicable laws. In addition, the Company reserves the right, within its sole and absolute discretion, to reject or remove any Advertising Materials that are or may tend to bring disparagement, ridicule or scorn upon the Company. Notwithstanding anything to the contrary herein, (a) in the event of any rejection of any Advertising Materials prior to placement and/or publication, Advertiser shall have no obligation to make any payments with respect to such rejected Advertising Materials; and (b) if the Company removes any Advertising Materials after placement and/or publication, Advertiser shall remain obligated for all payments with respect to such removed Advertising Materials, provided that the Company shall use commercially reasonable efforts to acquire a mutually acceptable alternative to the removed Advertising Materials from Advertiser.

10.  Cancellation; Postponement. The following terms apply to Advertising Campaign cancellations: (a) if Advertiser cancels the Advertising Campaign more than fourteen (14) days before the scheduled start date of the Advertising Campaign, Advertiser shall pay a cancellation fee equal to ten percent (10%) of the cost of the Advertising Campaign; (b) if Advertiser cancels the Advertising Campaign less than fourteen (14) days before the scheduled start date of the Advertising Campaign, Advertiser shall pay a cancellation fee equal to twenty-five percent (25%) of the cost of the Advertising Campaign; and (c) if Advertiser requests to cancel the Advertising Campaign after the start date, no refund will be given for any fees, and the Company will use commercially reasonable efforts, but makes no guarantee that it will be able, to stop the Advertising Campaign. Any Advertising Campaign can be postponed or suspended by Advertiser for a maximum of sixty (60) days, provided that Advertiser gives the Company written notice of its desire to postpone the Advertising Campaign at least fourteen (14) days before the start date of such Advertising Campaign. If Advertiser fails to reschedule the Advertising Campaign to restart within 60 days of the original start date, Advertiser will be liable for a cancellation fee as if the Advertising Campaign had been cancelled on the date of notice of postponement. If the Advertising Campaign is postponed or suspended, the Company cannot guarantee an exact duplication of the original Advertising Campaign due to a potentially limited inventory, and no refund will be due to Advertiser for the Company’s reasonable inability to provide an exact duplication.

11. Termination. The term of this Agreement shall begin on the date this Agreement is executed by both parties and shall end upon final payment by Advertiser pursuant to the terms of this Agreement. Either party may terminate this Agreement if the other party is in material breach of its obligations hereunder that is not cured within ten (10) days after written notice thereof from the nonbreaching party, except as otherwise stated in this Agreement with regard to specific breaches. The following provisions will survive termination of this Agreement: Indemnification (Section 12), Limitation on Liability (Section 13), Limitation of Damages (Section 14), Confidentiality (Section 15), Data Privacy (Section 16), and General Terms (Section 17).

12. Indemnification. Advertiser agrees to defend, hold harmless and will indemnify the Company from all damages, costs, and expenses, of any nature whatsoever, including but not limited to reasonable attorneys’ fees, for which the Company may become liable by reason of its receipt or publication of Advertiser’s Advertising Materials. Advertiser hereby agrees to indemnify and hold harmless the Company, and the Company’s agents, servants, employees and representatives, from any and all claims, debts, liabilities, suits or proceedings, of any nature, that currently exist, or which predate this Agreement, or which may arise subsequent to the date of this Agreement, arising out of any intentional act or negligence Advertiser may commit in developing, creating or otherwise preparing its Advertising Materials or otherwise carrying out his responsibilities and obligations under this Agreement. This indemnification obligation is not limited in any manner whatsoever and all expenses, including legal fees, incurred by the Company, or by the Company’s agents, servants, employees and representatives, in order to give full effect to this indemnification provision, shall be assessable and payable by the Company on demand without setoff.

13. Limitation on Liability. Advertiser assumes all liability for content of advertising, and agrees to hold harmless, and will indemnify Company from all claims, losses, judgments, and damages arising there from. Liability for typographical errors, wrong insertions, late publications, and/or non- publication, non-performance due to Acts of God, as well as all other matters Advertiser might raise relevant to this contract, is limited to the amount charged to Advertiser by Company for the applicable Advertising Campaign. Claims for an allowance for such matters must be made within seven (7) days of the matters first occurrence.

14. Limitation of Damages. Company’s liability is limited in all cases to the return of the charges made for the applicable advertising. THIS LIMITATION OF LIABILITY IS A CONDITION FOR THE ACCEPTANCE OF ANY ADVERTISING BY THE COMPANY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR UNREALIZED BUSINESS OPPORTUNITY, ARISING OUT OF THIS AGREEMENT OR THE PUBLICATION OF OR FAILURE TO PUBLISH ANY ADVERTISING MATERIALS, WHETHER OR NOT THE SUCH COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ADVERTISER FURTHER AGREES THAT THE COMPANY’S PROVIDER OF AD MANAGEMENT SERVICES, WILL NOT BE LIABLE FOR ANY LOSSES, COSTS, OR DAMAGES THAT MAY ARISE FROM ADVERTISER’S USE OF AD BANNER MANAGEMENT SERVICES ON THE GRACOROBERTS MEDIA NETWORK AND THAT NEITHER THE COMPANY NOR THE AD BANNER MANAGEMENT SERVICES WILL BE LIABLE TO ADVERTISER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES.

15. Confidentiality. It is expressly agreed that neither Advertiser, nor the Company, nor their respective agents and representatives, shall disclose in any manner the terms and conditions of this Agreement to anyone not a party to it other than required by law.

16. Data Privacy.

16.1.   Compliance with Laws. If Advertiser collects, uses, or processes the personal data of any users of the Company’s products or services, including but not limited to Campaign Data or Co-Registration Data (as defined below), Advertiser must comply with all applicable laws (including by having a legal basis for processing and obtaining specific, informed, and unambiguous consent from a user where necessary). Advertiser is responsible for its processing of any such data, including but not limited to the disclosure or transfer of data. “Co-Registration Data” means personally identifiable information collected from individual users by the Company, where the Company specifically informs such users that the information collected will be shared with Advertiser. “Campaign Data” means data relating to the performance of an Advertising Campaign (for example, impressions, click data, or interactions).

16.2.   Data Usage and Disclosure. It is Advertiser’s responsibility to verify the accuracy and completeness of Co-Registration Data. Subject to Advertiser’s privacy policy, applicable laws, and this Agreement, Advertiser may use Campaign Data and Co-Registration Data solely for internal reporting and analysis and direct marketing purposes. Advertiser will not sell or disclose Campaign Data or Co-Registration Data to any third party, except that Advertiser may share Co-Registration Data with its service providers to provide services on Advertiser’s behalf, provided that Advertiser remains responsible for ensuring such service providers’ compliance with this Agreement. Advertiser acknowledges that users who have elected to co-register with Advertiser may have elected to co-register with the Company and/or its affiliates; and that the Company and its affiliates reserve all rights to market and communicate to such users, consistent with their respective policies and procedures. Campaign Data and Co-Registration Data are subject to our Joint Controller Data Processing Addendum, which is incorporated into this Agreement.

16.3.    Privacy Policies. During the term of this Agreement, Advertiser and the Company will publish publicly accessible privacy policies on their respective websites that comply with all applicable laws, rules, and regulations. Advertiser’s privacy policy must provide information about how users can exercise relevant data protection rights (e.g., rectification, opt-out, or deletion) with respect to Advertiser’s processing of Campaign Data and Co-Registration Data.

17. General Terms.

17.1.    Attorneys’ Fees. In the event of any action, dispute, litigation or proceeding with respect to this Agreement, the prevailing party or parties in such action, dispute, litigation or other proceeding shall be entitled to recover from the non-prevailing party or parties all fees, costs and expenses (including the reasonable fees and expenses of counsel) incurred in connection with such proceedings, whether or not suit is instituted, and if instituted, at both the trial and appellate levels.

17.2.    Entire Agreement. This Agreement supersedes and cancels any and all agreements, contracts and stipulations, written or oral, previously in force between the Advertiser and the Company with respect to the matters set forth in this agreement, and this Agreement constitutes the entire agreement and understanding between the Parties.

17.3.    Amendments; Modifications; Waivers. No amendment or modification of this Agreement, or waiver of its provisions, shall be valid unless in writing and signed by both Parties, and no such action by the Company shall be valid unless such signature is by an authorized officer of the Company.

17.4.    Assignment. This Agreement may not be assigned or transferred by Advertiser without the prior written consent of the Company.

17.5.    No Waiver. No forbearance or neglect on the part of the Company to enforce any or all of the terms, conditions or all the provisions of this Agreement shall be construed as a waiver or serve as an estoppel of any of the rights or privileges of the Company contained herein or otherwise available at law.

17.6.    Force Majeure. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its control, including but not limited to, fire, flood, accident, earthquake, hurricane, telecommunications line failures, electrical outages, labor disputes, network failures, or controls or regulation of federal, state, or local governments. To the extent that a force majeure has continued for five (5) business days and excluding payment obligations, either party has the right to cancel the remainder of this Agreement without penalty.

17.7. JURISDICTION; VENUE; JURY TRIAL; GOVERNING LAW. ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT SHALL ONLY BE BROUGHT IN THE STATE OF TEXAS IN AND FOR TARRANT COUNTY, TEXAS, AND THE PARTIES AGREE AND SUBMIT THEMSELVES TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF SUCH COURT FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING. THE PARTIES KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS, WHETHER WRITTEN OR ORAL, OR ACTION OF ANY PARTY. THIS AGREEMENT SHALL BE INTERPRETED, CONSTRUED AND ENFORCED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT APPLICATION OF ITS CONFLICTS OF LAW PRINCIPLES, AND THE UNITED STATES.