NAILEX AFRICA PUBLISHING LTD (“NAP”) and the person, firm or entity, including, but not limited to, advertisers (“Advertiser”), their buying agencies (“Agency”) and organizations known as advertising or buying services (“Service”), applying for credit to purchase such advertising and seeking to purchase advertising space (collectively called “Buyer”) hereby agree that the following terms and conditions shall govern issuance of credit and purchase of advertising space by and in NAP’s print publication (“Magazines”) and/or website (“Website”): In these Conditions attaching to all Insertion Orders relating to print advertising contracts:
a) “Advertisement” means the advertisement submitted by the Advertiser including loose “insert” or other “insert” where appropriate.
b) “Cancellation” means canceling all or part of the remaining unperformed portion of the Insertion Order, unless the context clearly indicates that the cancellation refers only to a specific insertion(s).
c) “Copy” means all material provided by the Advertiser for the Advertisement with the intention that such material should appear in the Publisher’s magazine.
d) “Insertion Order” means the insertion order between NAP and the Advertiser relating to each media buy agreed between the parties.
e) “Working Day” means any day other than Saturday, Sunday or any public holiday.
SUBMISSION AND PUBLICATION OF ADVERTISEMENTS
All Insertion Orders are subject to these Conditions and no variation or addition thereto shall be effective unless specifically agreed to in writing by NAP and the Advertiser.
The Publisher may revise advertisement rates at any time. The price in effect when the Insertion Order is placed binds the parties only for the specific booking agreed upon in the Insertion Order.
The Publisher accepts all orders only after approving the Copy and receiving any additional information the Publisher reasonably requests to ensure the Copy is acceptable.
Modifications
If the Publisher considers it necessary to modify space or alter the date or position of insertion or make any other alteration NAP shall notify the Advertiser of this as soon as possible. NAP reserves the right in its absolute discretion to require the Advertiser to amend any artwork, materials or copy for and relating to any Advertisement or to omit or suspend an Advertisement (for example if it is libellous, unlawful, defamatory, socially unacceptable, insensitive or otherwise contrary to editorial policy).
Responsible Advertising
It is the Advertiser’s responsibility to check the correctness of the Advertisement. The Advertiser represents and warrants that any Advertisement submitted by it for publication shall comply with all applicable laws, legislation, regulations, codes of practice and is not an infringement of any other party or person’s rights. The Buyer warrants that the Advertisements are legal, truthful, honest and decent. The Buyer hereby grants a worldwide non-exclusive, fully paid license to NAP and each Publisher to reproduce and display the Advertisement (including all contents, trademarks and brand features contained therein).
Please supply all art works in:
Portable Document Format (PDF) Press optimised (2400 dpi), with all high resolution graphics and fonts embedded. IF EDITING is required, accompany artwork with the font.
Adobe Illustrator, with text as outlines, and embedded images. and in high resolution 300dpi and in CMYK format. Text must not be embedded on pictures.
Adobe Photoshop, TIFF, EPS,350dpi, please make sure the document is 4 colour process
(CMYK).
JPEG advert / artwork supplied will be rejected.
TERMS OF PAYMENT
a) Invoices
Invoices shall contain advertiser’s details, date, invoice number, Purchase Order number(PO where applicable) and ad specifications and cost.
b) Payment
Payment is due in full prior to each advertising insertion.
a) If there are any delays, the Buyer must make payment within 10 working days from the date and receipt of the invoice, unless the Buyer and Nailex Africa Publishing Ltd (NAP) have mutually agreed to extend the credit period beyond 10 working days, up to a maximum of 30 days.
b) If the Buyer fails to make payment within the specified time, the Buyer agrees to cover all reasonable collection costs, legal fees, and attorneys’ fees that NAP incurs while enforcing the agreement. NAP also reserves the right to:
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cancel existing orders;
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refuse new orders;
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notify the Advertiser of the account status if the Agency or Service made the purchase;
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charge 4% interest per month on the overdue account; and
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pursue any legal rights and remedies available under applicable law.
c) Remittance
The Buyer must remit all payments using the payment options specified in the invoice.
d) Payment Responsibility
Regardless of whom NAP addresses the invoice to, the Advertiser, Agency, and Service remain jointly and severally responsible for paying the full invoice amount to NAP within the specified period. NAP does not consider payments made by the Advertiser to the Agency, or by the Agency to the Service, as valid payment. If a third party places ads on behalf of an Agency or Advertiser, both the Agency and Advertiser assume full, joint, and several responsibility for the actions of that third party and for full payment of any print or online advertising placed by them.
e) Payment Acceptance
Extension of credit to Agencies is based on the Agency’s acceptance of liability for all advertising placed by them and billed to their account. No endorsement, statement or disclaimer on any insertion order, check or letter shall act as an accord or satisfaction, or as a waiver of this condition unless and until it is accepted by NAP by a separate written agreement signed by a duly authorized representative of NAP. In the event of non-payment of any Agency account, prior to referring said account for third party collections, NAP reserves the right to contact the Agency’s client(s), as disclosed principal(s), for payment. If the outstanding balance is still not satisfied, NAP may proceed with collections against both the Agency and the Advertisers. No such action on the part of NAP shall relieve the Agency of liability for the debt.
f) Bounced Checks
There will be a $25 charge for any check not honored by the bank. Returned checks must be replaced with certified/cashier/wire transfer funds within 48 hours of notification. NAP reserves the right to withhold further advertising pending receipt of replacement funds.
g) Payment Collection
In the event an account is referred to a third party for collection, Buyer agrees to pay collection and/or attorney fees, as well as court costs incurred to effect collection. Payment of account is not dependent upon receipt of tearsheets, either physical or electronic.
h) Rate Card
Unless otherwise approved by NAP, incorrect rates on insertion orders that do not correspond to the rate card will be regarded as clerical errors and the advertisements will be published and charged at the applicable rates in effect at time of publication.
i) Terms and Conditions
Terms, conditions, rates or agreements not set forth herein or in then-current rate schedules are not binding on NAP. Sales representatives and account executives are not authorized to modify these terms and conditions.
TERMINATION/CANCELLATION
Cancellation Fee
a) If you cancel a contracted advertisement less than 14 days before the scheduled publication or insertion date, you must pay a 50% cancellation fee. However, NAP may waive this fee if it sells the advertising space at the same rate to another client before the launch or publication.
b) If you cancel a contracted advertisement less than 7 days before the scheduled publication or insertion date, you must pay a 100% cancellation fee. However, NAP may waive this fee if it sells the advertising space at the same rate to another client before the launch or publication.
c) If you cancel a contracted advertisement for any reason (including delays in creative preparation or transit) after the established deadline for a specific issue, NAP may, at its discretion, substitute a previously published ad and bill you at the contracted rate. NAP will bill you at the contracted rate for all late cancellations, whether or not it substitutes an ad.
Cancellation Time Frame
a) NAP cannot guarantee cancellations or changes in advertising unless you provide notice at least 48 hours before the publication or insertion date.
b) You must submit multi-insertion orders in writing. You must also confirm any cancellation of such orders in writing.
c) NAP does not assume any liability for the return of printing material in connection with advertising unless a specific written request is received to hold such material subject to order for a period not exceeding 30 days.
d) Subject to the “Makegood” provision below, claims for errors must be made within thirty (30) days following publication date.
h) Cancellation of online insertion orders prior to completion of the requested run will not result in prorated refunds.
i) Notwithstanding any of the aforementioned circumstances giving rise to permissible cancellation, any advertisements subject to the instant agreement must run within 12 calendar months of contract execution or Buyer will forfeit 100% of the associated fees.
RATES
Publishers reflect rates in rate cards based on the ad specifications ordered.
PLACEMENT/PRODUCTION/DELIVERABLES
a) Ad Placement
Unless the Buyer pays a position charge, NAP cannot guarantee the requested placement or positioning of an advertisement in the Magazine or on the Website.
b) Production Cost
NAP will bill the Buyer at cost for all production work that does not meet the technical specifications for a PDF.
c) Cost of Composition
The Buyer shall pay the cost of composition of advertisements set but not used.
d) Charges
Charges for changes (but not corrections) from original layout and copy will be based on current composition rates.
e) Materials Submittion
NAP does not accept responsibility for errors in advertisements when the Buyer submits them too late for proofing, or when the Buyer or a third party they designate delivers printing or insertion materials after the published deadlines.
f) Insertions
NAP accepts no liability for any error in an advertisement beyond providing the Buyer with credit for the portion of the ad space materially affected by the error. NAP’s obligation to issue credit applies only to one incorrect insertion per contract or order, unless the Buyer notifies NAP of the inaccuracy before the deadline for repeating the insertion. The Buyer may request credit for errors caused by NAP in the form of “makegood” ads. Makegood insertions must appear within 48 hours of the error or the next available issue of publication.
g) Circulation
NAP does not guarantee any given level of circulation or readership for an advertisement.
h) Liability
The Buyer assumes liability for all content (including text representation and illustrations) of advertisements published and also assumes responsibility for any claims arising therefrom made against NAP, including costs associated with defending against such a claim.
i) Advertisements
If a reader might mistake any advertising copy for news, features, or other non-advertising content, clearly mark it as an “advertisement.” If it isn’t clearly marked, NAP will add the “advertisement” notation.
j) Ads positions
Unless NAP provides a specific written commitment, NAP reserves the right to determine all ad positions. NAP will not make any adjustments, reinstatements, or refunds due to the position or section where the ad appears. NAP does not permit the misclassification of classified ads.
k) Deliverables Obligation
If the ad campaign ends with a shortfall or discrepancy in delivering impressions or other promised deliverables, NAP will not consider it a breach of obligation and will not accept liability for damages or offsets of any kind. In such cases, NAP will deliver “make good” impressions through comparable placements within 30 days after the scheduled campaign end date—as the sole remedy for the Advertiser, Agency, and Buyer.
EFFECT OF BREACH
a) NAP reserves the right to cancel an advertising contract upon default by Buyer in the payment of bills or other material breach of the terms hereof at any time upon prior written notice. Upon such cancellation, all charges for ads printed or run online and not paid shall become immediately due and payable. If NAP cancels by reason of Buyer’s material breach, Buyer’s only liability shall be to pay for ads completed hereunder prior to cancellation by NAP.
b) In the event of a material breach by NAP in publishing the Buyer’s advertising, Buyer reserves the right to cancel the advertising contract at any time upon prior written notice.
FAILURE TO PUBLISH
If a public emergency, necessity, force majeure event, legal restriction, act of God, labor dispute, or any other cause beyond NAP’s control—including mechanical or electronic breakdowns—prevents NAP from printing or carrying an advertisement as contracted, NAP will provide “make good” impressions through comparable placements as the sole remedy for the Advertiser, Agency, and Buyer, delivering them no later than 60 days after the scheduled campaign stop date.
ADVERTISING MATERIAL
a) The Buyer shall furnish all advertising material and pay all expenses related to its delivery to NAP.
b) Buyer shall submit advertising material along with written instructions for its use to NAP as soon as possible to ensure proper publication. You should send any changes to instructions in writing to NAP by email before making the changes.
c) NAP will not accept responsibility for any losses advertisers incur from errors in advertisements. NAP will only cover the cost of the space needed to correct the error. The advertiser and the publisher agree that this contract does not create any other liability between them.
d) NAP, in its sole discretion, reserves the right to reject any ad copy. We reject advertisements that are gratuitously offensive, depict or advocate violence, or appear to be in poor taste. NAP also reserves the right to reject any comment (s) that can jeopardize the reputation of any of its publications. All ad creative must include the advertiser name or logo. We reserve the right to reject comments or cancel any advertisement at any time. Rates and specifications are subject to change.
e) Buyers are responsible for checking the accuracy of the proofs they request. The Buyer should carefully check the entire ad proof, even the areas where they didn’t request changes or corrections.
PRIVACY AND DATA PROTECTION
a) General Data Protection Regulation
All capitalized terms used but not defined in this Section, have the meaning ascribed to them in General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”). For purposes of this Section 8, each party is a Data Controller of the Personal Data that it collects, employs or otherwise Processes to deliver its services, absent a further amendment that sets forth circumstances in which either party is a Data Processor.
b) Third Party
Publisher, on the one hand and Advertiser, Agency and Buyer, on the other hand, each Process Personal Data, including exchanging Personal Data with the other party, for purposes of providing advertisements on publisher’s Magazine and/or Website (collectively, the “Purposes”). Either party may Process the Personal Data that it obtains from the other party for its own purposes, including to provide services for the benefit of other platforms and clients.
c) As Data Controllers, each party shall:
i.) Legal Requirements
comply with all laws, regulations and other legal requirements of any jurisdiction relating to privacy, data security, communications secrecy, Personal Data Breach notification, or the Processing of Personal Data, such as, to the extent applicable, GDPR (“Data Protection Laws”), and promptly notify the other party in writing if it is no longer able to meet its obligations under Data Protection Laws with respect to the subject of this Agreement;
ii.) Transfer Personal Data
shall Process and Transfer Personal Data only for the purposes described in this advertising purchase agreement, or as otherwise agreed in writing by the parties;
iii.) Data Controllers under Data Protection Laws
independently fulfill all duties required of Data Controllers under Data Protection Laws, including, without limitation (as applicable), with regard to complying with applicable principles of Personal Data Processing (such as data minimization);
determining and qualifying for any necessary legal basis or bases for collection or processing of Personal Data (such as consent, if applicable); managing and reporting Security Incidents; Transfers (including, without limitation, entering into Standard Contractual Clauses or certifying under the Privacy Shield Framework); contracting with only those Data Processors that provide adequate protections for Personal Data;
implementing required and appropriate contractual language in agreements with Data Processors and other Data Controllers; maintaining records of data processing; conducting any required data protection impact assessments; and implementing and maintaining all measures required pursuant to Article 32 of the GDPR, where “Privacy Shield” means the EU-U.S. Privacy Shield Framework and the Swiss-U.S.
Privacy Shield Framework as set forth by the U.S. Department of Commerce and “Standard Contractual Clauses” means either the standard contractual clauses for the transfer of personal data to third countries (Commission Decision 2004/915/EC) or the standard contractual clauses for the transfer of personal data to processors established in third countries (Commission Decision 2010/87/EC
iv.) Data Subjects
have an independent obligation to respond to any requests received by such party from Data Subjects regarding Personal Data, including without limitation, those set forth in Chapter III of the GDPR, and, if applicable, and to the extent legally permitted, the parties shall provide each other with reasonable cooperation and assistance in relation to handling of a Data Subject’s request; and
v.) Dispute or Claim
inform the other (to the extent legally permitted) about any dispute or claim brought by a Data Subject or a Supervisory Authority concerning the Processing of the Personal Data under this advertising purchasing agreement, and if applicable, and to the extent legally permitted, the parties shall provide each other with reasonable cooperation and assistance in relation to handling of a dispute or claim brought by a Data Subject or a Supervisory Authority; provided that and the party that was the recipient of the dispute or claim shall be responsible for interacting with the relevant Data Subject or Supervisory Authority.
d) Personal Data
Neither party shall have responsibility for Processing special categories of personal data, as referenced in Article 9 of the GDPR. Neither party shall provide the other with any special categories of personal data.
e) Data Protection
Each party shall post a privacy notice on its website that complies with Data Protection Laws, reflects the nature of the relationship and Transfer of data between the parties, and identifies a contact point for Data Subjects.
Each party must ensure its privacy notice informs Data Subjects that (i) they will share their Personal Data with other third parties, such as publishers or Advertisers, as applicable; (ii) they will receive their Personal Data from third parties, such as publishers or Advertisers, as applicable; and (iii) they will Process their Personal Data for advertising purposes, including targeted advertising, if applicable.
Since the Advertiser does not directly relate to any Data Subject using the publisher’s website(s) or application(s), the publisher must actively use commercially reasonable efforts to obtain legally sufficient consent for both the publisher’s and Advertiser’s processing of Personal Data for these purposes when Data Protection Laws require consent. If any Data Subject withholds or rescinds such consent, neither party will Process that Data Subject’s Personal Data for the Purposes.
INDEMNITIES
Buyer agrees to hold and save NAP harmless against all liability resulting from the publication of advertising material furnished by Buyer.
GENERAL TERMS
a) Laws and Regulations
NAP’s obligations hereunder are subject to applicable local and EU laws and regulations.
b) Advertising Material
NAP shall exercise normal precautions in handling of property and mail, but assumes no liability for loss or damage to advertising material and other property furnished by Buyer.
c) Waiver
If NAP or the Buyer fails to enforce any of the provisions in this agreement, do not interpret that failure as a general relinquishment or waiver of that or any other provision.
d) Cancellation
If NAP approves credit, it may cancel that credit at any time, with or without notice, and for any reason.
e) Dispute
The Buyer must report any dispute related to a publication, advertising material, service provided by NAP, or the amount charged for them, in writing to NAP within 30 days of the related invoice date; time is of the essence. Any such dispute shall not affect Buyer’s obligation to make payment within terms stated above. Failure to report any dispute within such time shall constitute a waiver of any claim by applicant with respect to such dispute.
f) Credit
This application for credit and purchase agreement is a written authorization for NAP to conduct a credit inquiry on the persons and entities indicated above. NAP may also answer questions about its credit experience with such persons and entities when others inquire. In addition, NAP may, at its discretion, recheck the applicant’s credit and/or request new credit references from the applicant as long as the applicant continues to advertise with NAP.
g) Authorization
The person signing the credit application and advertising contracts certifies that they have the authority to provide this information and to sign the application and contracts. They also confirm that the above statements are true and that they have not omitted any unfavorable information they know.
h) Execution
The person executing the application and contracts on behalf of applicant acknowledges that they have the authority to do so, and by its execution it has caused applicant and third parties to be jointly and severally bound by the terms hereof.
i) Contracts
The application for credit, advertising contract and these terms and conditions contain the entire agreement between the parties relating to the subject matter herein contained and no change in the terms and provisions shall be effective unless made in writing.
j) Contracts Laws
The laws of the Commonwealth of East Africa shall govern the credit application and advertising contract, without referring to any choice of law provisions.
k) Unclaimed Property
For the purposes of any state unclaimed property law, the applicable invoice will identify the party as the “owner” of any unclaimed property.
