These Master Advertising Terms and Conditions (these “Terms” or this “Agreement”) are made and entered into between TheHomeMag Holding Company, LLC and THM Management, LLC d/b/a THM Media (collectively hereinafter referred to as “THM”), and the customer that is signing up for THM’s services, whether by clicking “I Agree” to these Terms on THM’s website, or physically or electronically executing these Terms (hereinafter referred to as “Advertiser”). Each may be referred to as a “Party,” and collectively with the other, as “Parties” to this Agreement.

Article 1: General

1.1 Description of Services; Statements of Work; Term. During the term of this Agreement, THM will advertise Advertiser’s goods and services via its online platform and/or in its print publication(s) pursuant to the terms and conditions set forth in this Agreement and in separate agreed upon written terms (as such may be amended from time to time, the “Statements of Work” or “SOW”), and which terms are incorporated herein by reference. The Parties may enter into SOWs from time to time using any reasonable form of written communication, including text messages and emails. These Terms shall control and bind the Parties with respect to all current and all future advertisements placed with THM, including those set forth in applicable SOWs. In the event of a conflict between these Terms and an applicable SOW, these Terms shall prevail and control.

1.2  Duties and Responsibilities.

1.2.1 Delivery of Ad Proofs. THM will provide digital proofs for Advertiser’s print or digital advertisement, which will be used for corrections and/or changes only. Digital color is often slightly different than printed ink on paper, and THM cannot guarantee color accuracy.

1.2.2 Approval of Ad Proofs. If Advertiser fails to approve an advertising proof prior to the applicable deadline, THM may deem this to indicate Advertiser’s approval, and Advertiser shall continue to be responsible for all payments due under this Agreement and all applicable SOWs. Failure to acknowledge or return any advertising proof will not alter the payment terms under this Agreement or the applicable SOW.

1.2.3 Ad Positioning. THM does not guarantee ad positioning within the magazine, except with a signed and accepted agreement calling for exact page and/or positioning (such agreement to be considered part of this Agreement upon execution), which if available, may be purchased at premium pricing.

1.2.4 No Ad Supplied. Should Advertiser reserve space in any publication and/or digital presence of THM and not supply advertising copy or artwork by the published deadline, THM may, at its discretion, either use Advertiser’s prior ad, changing only expiration dates where applicable, or cancel the balance of the applicable SOW and/or this Agreement and remove the Advertiser’s content from all future publications. Any unpaid balance at such time remains owed and shall be due immediately.

1.2.5 Discretionary Revisions and Refusal of Ads. THM also reserves the right, at its sole discretion, to edit, rewrite, or refuse any copy, material, or art submitted for publication (whether in print or digital) which does not meet THM’s standards. Advertiser may not use slogans, trademarks, or other intellectual property of a third party without such third party’s prior written consent, a copy of which Advertiser shall provide to THM immediately upon THM’s request.

1.3 Payment. Advertiser may elect to pay for advertising placed in THM either (i) per advertisement or (ii) in advance for the full duration of the Initial Term or Renewal Term (as defined below). Payment for each advertisement is due and payable prior to publication of the issue in which the advertising is scheduled to appear, unless Advertiser has paid in advance for the Initial Term or Renewal Term. Such payments received by THM from Advertiser later than 30 days after the date of publication are deemed late payments. Interest is charged on late payments at a rate of one percent (1.0%) per thirty 30 days after the date such payment is late, or the maximum permitted by law, whichever is less. THM’s acceptance of late payment(s) shall not be construed as a waiver of THM’s rights relative to any subsequent late payment(s) or any other event of default as set forth in this Agreement. Advertiser shall pay (i) all taxes and other government charges and (ii) reasonable expenses and attorneys’ fees THM incurs in collecting late payments.  

1.4 Rate Adjustments. THM reserves the right to revise advertising rates at any time. Current advertisers will be notified in writing (email and/or mailed letter/notification) thirty (30) days prior to such an adjustment. In the event of a rate increase, Advertiser may cancel this Agreement within that thirty (30)-day period, at no penalty. If no response is received, the first ad published by the Advertiser, after the new rate becomes effective, shall indicate Advertiser’s acceptance of these new conditions and Advertiser may no longer cancel this Agreement, except in accordance with Section 1.7.

1.5 Cancellations. Any In-book or digital Ad cancellations must be provided to THM in writing (printed, email, or text) with forty-five (45) days prior written notice. Such cancellations will become effective upon the expiration of such 45 day period.  Accessory Product cancellations (for items such as DML, Bookmark, and PopOut) will not be accepted within forty-five (45) days of the first Issue deadline for that contracted and scheduled product. No cancellations are allowed for multi-Issue Accessory Product print and-hold agreements once the first Issue has been printed.  

1.6 Errors and Mistakes.. Any errors or mistakes related to ads published in the magazine must be brought to THM’s attention within seven (7) days after the in-home date for the magazine.

1.7 Term; Termination. The term of this Agreement shall commence as of the date hereof and shall continue for a [3-month or 6-month or 12-month] period thereafter (the “Initial Term”). Following the expiration of the Initial Term, unless otherwise terminated by Section 1.8, this Agreement shall automatically renew for successive renewal periods of the same duration as the Initial Term (each, a “Renewal Term”), unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Collectively, the Initial Term and any Renewal Terms shall constitute the “Term” of this Agreement.  THM reserves the right, at its sole discretion, to terminate this Agreement and any or all applicable SOWs at any time, for any reason it deems necessary, with no prior notice to Advertiser. THM also reserves the right to refuse service to any person or company for any reason. Following the Initial Term, Advertiser may terminate this Agreement, with or without cause, by delivering to THM thirty (30) days’ written notice of termination. In the event that Advertiser terminates this Agreement, Advertiser shall remain responsible for all fees due and payable through the end of the thirty (30) day period, including any fees related to advertisements that have already been scheduled, placed, or published in print or online, as well as any advertisements that have been printed or digitally published prior to the effective termination date. The termination of this Agreement for any reason shall not affect the provisions hereof that are, by their terms, meant to survive the termination.

1.8    Amount Due on Termination. In the event of termination or expiration of this Agreement for any reason by any Party, all amounts due and/or payable by the Advertiser to THM shall survive the termination of this Agreement and such termination shall not limit or inhibit THM’s right to seek damages against the Advertiser for the unpaid amounts due to THM on account of this Agreement, and to seek any other remedies which may apply in law or in equity. If during a Renewal Term the Advertiser has paid in advance for any period after the effective date of termination, THM will refund the Advertiser for any unused advertising that has been paid for but not yet scheduled, placed, or published in print or online.

 Article 2: Intellectual Property Rights and Confidential Information

2.1 Ownership of Intellectual Property. THM and Advertiser, respectively, are each owners or have license or other proprietary rights to their respective trademarks, trade names, service marks, service names and logos (collectively, “Intellectual Property”). Except as specifically stated in these Terms, the Parties retain sole ownership and all rights to their own Intellectual Property. All original material (including without limitation advertisements, or any parts thereof) created by THM shall be the sole property of THM and may not be reproduced in any manner, whether by Advertiser or any other third party. Any use of THM’s original material by any third party without THM’s authorization is prohibited, and Advertiser shall indemnify THM for any damages that THM may incur in connection therewith. Without limitation of the foregoing, if THM’s original material is used by a competitor of THM, both the Advertiser and such competitor shall be liable for infringing on THM’s Intellectual Property.

2.2 Grant of License by Advertiser. THM shall have full rights to reproduce any advertisement, in whole or in part, and to use such reproduction in any manner, in any market, including but not limited to using it in marketing materials and/or art files made available for use digitally and in all THM locations within or outside Advertiser’s print trading zone. Advertiser acknowledges that this permission is granted freely and that no fee will be paid in the event of any use of such advertisement.

2.3 Confidential Information. For purposes of this Agreement, “Confidential Information” means all knowledge and trade secrets of either Party gained and utilized by virtue of advertising in TheHomeMag®,  any information, records, or data concerning either Party’s financial records or finances, technical information, existing and/or contemplated products and services, research and development, sales information, marketing and/or advertising information, development, any information concerning employees, any information concerning subcontractors or independent contractors, customer lists, supplier lists, trade secrets, designs, product formulations, product specifications, software, software design, source code, business processes or procedures, pricing models, pricing lists or structures, policies or procedures, any other proprietary or confidential information, any information that, by its nature, would be considered confidential however recorded or preserved, whether written or oral.

2.4 Protection of Confidential Information. During the Term and for a period of five (5) years thereafter (including following any termination), the receiving Party agrees to retain in confidence and to refrain from using for the receiving Party’s benefit or the benefit of any third Party any and all Confidential Information (a) disclosed to the receiving Party by or on behalf of the disclosing Party; (b) obtained by receiving Party’s representatives while visiting the disclosing Party’s facilities. These restrictions shall not apply to Confidential Information which (1) is or become public knowledge through no fault of receiving Party or its representatives; (2) is lawfully made available to the receiving Party by an independent third party; (3) is already in the receiving Party’s possession at the time of initial receipt from disclosing Party and such prior possession can be properly demonstrated by the receiving Party; or (4) is required by law, regulation, or order of any governmental authority or agency to be disclosed by the receiving Party, provided, however, that the receiving Party shall give the disclosing Party sufficient notice to permit it to seek a protective order or other similar order with respect to such Confidential Information and thereafter the receiving Party shall disclose only the minimum Confidential Information required to be disclosed to comply.

2.5    Limitations on Use. Each Party agrees that it will not use the Confidential Information for any purpose other than for performing its obligations under this Agreement and any SOW. Further each Party agrees to inform its employees, officers, representatives, agents, and subcontractors of the proprietary nature of the Confidential Information under this Agreement. The receiving Party shall be responsible for any breach of this Agreement by such receiving Party’s employees, officers, directors, owners, representatives, agents, and subcontractors.

Article 3: Warranties, Indemnification, and Limitation on Liability

3.1 Warranties. Advertiser represents and warrants to THM that the Advertiser: (i) has all requisite corporate power and authority to execute, deliver and perform its obligations hereunder; (ii) is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the ownership or leasing of its assets or the transaction of business of the character transacted by it, except when the failure to be so licensed, authorized or qualified would not have a material, adverse effect on its ability to fulfill its obligations hereunder; (iii) will comply with all federal, state and local laws and regulations applicable to it in the performance of its obligations hereunder and will obtain all applicable permits and licenses required of it in connection with its obligations hereunder; (iv) will avoid deceptive, misleading or unethical practices that could adversely affect the performance of its obligations under this Agreement or any SOW, or, during the Term or at any time thereafter, damage the reputation of THM; (v) has not entered into any agreement with a third Party, the performance of which is reasonably likely to prevent it from performing fully its obligations hereunder. Further, Advertiser represents and warrants to THM that (i)  any and all licenses, permits, bonds, and insurances that are required in Advertiser’s business are in full force and effect pursuant to local, state, and federal guidelines, and (ii) all material submitted to THM is material which Advertiser has legal permission to use and that no such material submitted is in violation of any law and does not infringe on copyright, trademarks, trade names, patents, or any other intellectual property or privacy rights of any third party of any type.  

3.2 Indemnification. Advertiser shall defend, indemnify and hold harmless THM and each of its affiliates, and each of their respective former, current and future direct or indirect holders of any equity, controlling persons, incorporators, directors, officers, publishers, employees, agents, attorneys, members, managers, management companies, representatives, assignees and related persons, and any former, current and future direct or indirect holders of any equity, general or limited partnership or limited liability company interests, controlling persons, incorporators, directors, officers, publishers, employees, agents, attorneys, members, managers, management companies, portfolio companies, general or limited partners, stockholders, representatives, assignees and related persons of any of the foregoing (collectively, the “THM Parties”), from and against any and all damages, costs, losses or liability (including attorneys’ fees and related costs), whether or not resulting from a third-party claim, suit or proceeding, related to or resulting from (i) any breach (or any claim that, if true, would constitute a breach) of Advertiser’s representations, warranties or covenants contained in this Agreement, (ii) any breach or alleged breach of any intellectual property or privacy rights of any third Party, whether or not in connection with the publication of any advertisement of the Advertiser or otherwise, (iii) the content of any advertisement of the Advertiser, (iv) any action of any customer or prospective customer of Advertiser, whether or not such action relates to or arises from the advertisement of the Advertiser, and (v) the operation of Advertiser’s business or the goods or services provided by Advertiser in its business. The provisions of this section 3.2 shall survive the termination of this Agreement indefinitely.  

3.3 Limitation on Liability. UNDER NO CIRCUMSTANCES, INCLUDING ANY INFRINGEMENT CLAIMS, SHALL THM BE LIABLE TO ADVERTISER OR ANY OTHER PARTY FOR ANY COSTS, LOST REVENUE OR PROFITS OR FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF AS HAS BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE. IN ANY EVENT, TO THE MAXIMUM EXTENT PERMITTED AT LAW, THM’S AGGREGATE LIABILITY FOR DAMAGES TO THE ADVERTISER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, FRAUD, NEGLIGENCE, PRODUCTS LIABILITY AND STRICT LIABILITY), SHALL BE LIMITED TO THE AMOUNT OF NO MORE THAN THREE (3) MONTHS OF PAYMENTS ACTUALLY RECEIVED BY THM FROM THE ADVERTISER PURSUANT TO THIS AGREEMENT OR ANY SOW.

3.4 Failure to Publish. Without limitation of the foregoing limitation of liability, the sole liability of THM for failure to publish any ad shall be limited to the cost of the advertising space, which if prepaid, will be refunded or traded in for like-kind for future ad space.

3.5 Services Provided by THM “As-Is”. The services provided by THM are provided “as is” without warranty of any kind, express or implied, including without limitation for non-infringement, satisfactory quality, merchantability and fitness for any purpose. Any use of the services offered by THM is at Advertiser’s sole risk. THM does not warrant that the services will be uninterrupted or error free, nor does THM make any warranty as to the performance or any results that may be obtained by use of THM’s services. 

3.6 Rights Reserved by THM. THM reserves the right to seek remedy, relief, and damages against current and former advertisers that elect to compete, either in full or in part, directly or indirectly, with TheHomeMag® Print and/or Digital products.

Article 4: Miscellaneous

4.1 Force Majeure. THM shall not be held liable for any delays in the publishing digital content or the printing and/or delivery process of printed materials, and subsequently the Advertiser’s advertisement, or any failure to perform its obligations hereunder due to causes beyond its control, including but not limited to, acts of God, fire, flood, or other catastrophes; strikes, lock-outs, work stoppages or other labor difficulties, denial of service attacks, damage to transmission lines or devices and power failures.

4.2 Governing Law. This Agreement and all SOWs shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to principles of conflict of laws.

4.3 Venue. Venue for all suits arising pursuant to this Agreement and all SOWs shall lie exclusively in the courts of Lee County, Florida. By execution and/or adoption of this Agreement, each Party hereby submits to the in personam jurisdiction of all courts of Lee County, Florida.

4.4 Assignment. The Advertiser shall not assign or otherwise transfer any of its rights and obligations under this Agreement or any SOW, except when expressly permitted to do so by THM’s prior, written consent.  Notwithstanding any other provision in this Agreement to the contrary, THM shall be free to assign and transfer any and all of its rights and obligations under this Agreement and all SOWs without the consent of the Advertiser. This Agreement is binding upon and enforceable by each Party’s permitted successors and assignees.

4.5 Severability. If any one or more provisions of this Agreement or in any instrument or other document delivered pursuant to this Agreement, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the validity, legality and enforceability of the remainder of this Agreement, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected or impaired thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law and the Parties shall negotiate in good faith a substantively comparable enforceable provision to replace the unenforceable provision.    

4.6 Affiliates and Franchises. For purposes of exercising the benefits under this Agreement, the “theHomeMag” or “THM” shall mean and include THM corporate entity and/or franchisor (“THM Corporate”) and all direct and indirect affiliates and franchisees of THM Corporate, regardless of location or trade name. However, in no event will THM Corporate or any of its direct or indirect affiliates or franchisees be or become liable for the duties or obligations of the affiliate or franchisee that presents and consummates this Agreement with its own customers. In any event, and notwithstanding anything to the contrary in this Agreement, the liability of THM Corporate and all direct and indirect affiliates and franchisees of THM Corporate shall be several, and not joint, with respect to any claims by Advertiser or any other third party.

4.7 Successors and Assigns. This Agreement (together with all applicable SOWs) and all the terms and provisions hereof shall be binding upon and shall inure to the benefit of the Parties and their respective legal representatives, successors and permitted assigns.

4.8 Entire Agreement; Amendment. This Agreement (together with all applicable SOWs) constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes any and all prior negotiations, understandings and agreements in regard hereto. THM may amend this Agreement from time to time by posting an amended version hereof on THM’s website. Advertiser shall periodically check THM’s website for updates to this Agreement. THM and Advertiser may, from time to time, enter into new SOWs, or renew or amend SOWs, by any reasonable form of written communication, including text messages and emails.

4.9 Certified Partner Terms. Advertiser may apply to become a “Certified Partner” of THM. If accepted as a Certified Partner, then the Certified Partner Terms and Conditions, as such may be amended from time to time (the “CP Terms”), shall also apply to the Advertiser and such CP Terms are hereby incorporated by reference. The CP Terms shall in all respects be subject to the terms contained in this Agreement. In the event of a conflict between this Agreement and the CP Terms, this Agreement shall prevail.

4.10 Headings. The captions in this Agreement are inserted for convenience of reference only and shall not affect the construction of this Agreement.

4.11 Waiver. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver of any other provision hereof (whether or not similar).

4.12  Attorney’s Fees. In the event any Party brings suit in regard to this Agreement or any SOW, the prevailing Party shall recover from the non-prevailing Party its reasonable expenses, court costs and attorneys’ fees.  As used herein, expenses, court costs and attorneys’ fees include expenses, court costs and attorneys’ fees incurred pre-litigation and in any appellate proceeding.

4.13  Counterparts. If this Agreement is being presented through a digital platform, clicking “I Agree” shall constitute an original signature of the Advertiser, and this Agreement will be deemed to have been duly and validly delivered and be valid and effective for all purposes. If this Agreement is being executed in wet ink or by electronic signature, this Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument. Counterparts may be delivered via facsimile, electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com), or other transmission method and any counterpart so delivered will be deemed to have been duly and validly delivered and be valid and effective for all purposes.