Nature Publishing Group Terms and Conditions - July 2016
These Terms and Conditions shall apply to all Advertisements submitted to NPG. An Advertisement submitted to NPG for publication shall not be deemed to have been accepted unless and until either confirmed in writing by NPG or the campaign commences and the first Advertisement appears in the relevant NPG Publication. By submitting an Advertisement to NPG, the Customer agrees to be bound by these Terms and Conditions and the Rate Card, even if it is acting as agent or buyer for the actual advertiser. For the avoidance of doubt, the Customer’s standard terms and conditions of purchase or any other standard terms and conditions shall not apply.
In these terms and conditions the following definitions shall apply:
"Actual Advertisement Placements" means the actual number of placements of an Advertisement in any NPG Publication in any 12 month period preceding any anniversary of the Publication Date;
"Advertisement" means an advertisement published, reproduced or inserted in or on any Journal, E-Mail Campaign or Digital Format pursuant to an Advertisement Order;
"Advertisement Order" means any order for an Advertisement submitted to NPG for the publication, reproduction or insertion of Material in or on any NPG Publication;
"Digital Format" means any internet site, application or other digital format operated, owned or controlled by NPG or any third party partner of NPG comprising its partner network;
"Expected Advertisement Placements" means the expected number of placements of an Advertisement in any NPG Publication used to calculate the rates (prior to the Publication Date) the Customer will pay NPG;
"Customer" means the person or legal entity who submits an Advertisement Order, whether such person or legal entity is the advertiser of the relevant product or service, the Advertiser's advertising agency, media buyer, or a recruiter representing a prospective employer;
"E-Mail Campaign" means any e-mail campaign undertaken by or on behalf of NPG;
"Journal" means any journal or other print publication published by or on behalf of NPG;
"Publication Date" means the date the Customer’s Advertisement is first published in a NPG Publication;
"NPG" means the contracting entity set out on the invoice(s) submitted to the Customer by NPG, being Nature Publishing Group, a division of either:
Macmillan Publishers Limited (company number 785998), registered in England whose registered office is at Brunel Road, Houndmills, Basingstoke, Hampshire RG21 6XS; or
Nature America Inc. of 75 Varick Street, New York, NY 10013; or
Nature Japan KK of Chiyoda Building 6F, 2-37 Ichigayatamachi Shinjuku-ku, Tokyo 162-0843, Japan.
"NPG Publication" means any Journal, Digital Format or E-mail Campaign;
"Material" means any advertising material/copy, artwork, photographs or other material provided or to be provided by the Customer in connection with the Advertisement Order;
"Rate Card" means the rate card of NPG as amended by NPG from time to time in accordance with clause7.12;
"Terms and Conditions" means the terms and conditions set out on this page as amended by NPG from time to time in accordance with clause 7.12.
2. PUBLICATION OF ADVERTISEMENTS
2.1. The Customer grants NPG an irrevocable, world-wide, royalty-free licence to reproduce, publish and republish the Advertisement within the relevant NPG Publication (irrespective of the medium or platform in or on which it is published) in accordance with the provisions of the Advertisement Order.
2.2. NPG may reject, refuse, omit, postpone, cancel, or require changes to the whole or part of any Material, Advertisement Order or Advertisement submitted for insertion into a NPG Publication at any time, whether or not it has accepted the Advertisement Order, including the dates for publication and positioning of the Advertisement, or to accept the Advertisement Order subject to additional conditions which will be notified by NPG to the Customer.
2.3. The Customer shall submit all Advertisements to NPG in accordance with NPG’s then current technical specifications (as may be updated from time to time), the current version of which is available on request;
2.4. Save to the extent caused by its negligence, NPG shall not be responsible for any error or omission in the insertion of any Advertisement, or for any damage or loss of any copy, electronic files, data, drawings or other materials supplied for the purpose of an Advertisement or any shrinkage or colour alteration that may occur during the normal course of production.
2.5. It is the Customer's responsibility to ensure that all Advertisements are correct, accurate and not misleading. NPG accepts no responsibility for any errors in an Advertisement including (without limitation) any errors which arise as a result of any changes or alterations undertaken by NPG at the Customer’s request. In respect of any Advertisement in a Journal, in the event of an error in a published Advertisement as a result of a material typographical error caused by NPG, NPG agrees to re-run the Advertisement free of charge in the next available edition of such Journal.
2.6. The Customer acknowledges and agrees that any Advertisements published on any Digital Format may be available on NPG’s network of partner Digital Formats. NPG reserves the right to add or remove a partner Digital Format from its partner network, at its sole discretion. NPG hereby disclaims all responsibility and liability for the services, software and/or results of or provided by any of the Digital Formats comprising NPG’s partner network.
3.1. The Customer contracts with NPG as a principal and warrants and represents to the NPG that:
3.1.1. it has full capacity and authority to enter into a binding contract with NPG on the provisions of these Terms and Conditions.
3.1.2. all information and Material supplied to NPG is true, accurate and not misleading, and nothing contained in it is liable to bring NPG or any NPG Publication into disrepute;
3.1.3. the Material is not obscene, defamatory, fraudulent, misleading or libelous, and shall not give cause, whether directly or indirectly, for any action to be brought against NPG for libel, fraud or publication of a false or misleading statement;
3.1.4. the Material will not infringe the intellectual property rights or any other rights (including without limitation any right of privacy or confidence) whatsoever of any third party or unfairly prejudice the legitimate interest of any third party by implication or otherwise;
3.1.5. the Material complies with all applicable legislation, laws, regulations and codes of practice (or similar);
3.1.6. the Material complies with the requirements from time to time of English financial services legislation both as to content and authorisation (including but not limited to the Financial Services and Markets Act 2000);
3.1.7. the Material complies with the Committee of Advertising Practice’s British Code of Advertising, Sales Promotion and Direct Marketing and all other codes under the general supervision of the Advertising Standards Authority or any successor body (as may be amended from time to time) and that without limitation all material included within an Advertisement is accurate, legal, decent, honest and truthful;
3.1.8. it shall not represent to any third party that NPG in any way endorses the Customer, the Advertisement and/or the Customer’s products or services;
3.1.9. it shall ensure that all Advertisements submitted for publication are clearly recognisable as advertising and not designed to resemble editorial content. Where an Advertisement resembles editorial content or advertorial, the Customer warrants that the Advertisement and the Material complies with NPG's guidelines concerning advertisements that resemble editorial content which are available to the Customer on request;
3.1.10. where an Advertisement includes a competition, prize draw or similar promotion, the Material complies with, and the competition, prize draw or promotion shall be conducted by the Customer, in accordance with all applicable laws and regulations, and the Customer shall be responsible for the provision of all prizes;
3.1.11. the Material shall not indicate an intention to discriminate on grounds of sex, race, religion or belief, disability, ethnic origin, age or sexual orientation (unless such an Advertisement is exempted from any statutory requirements relating to such forms of discrimination and the Customer notifies NPG of the applicability of such an exemption at the time when the Advertisement Order is submitted to NPG);
3.1.12. the Material shall not cause disruption to any computer, computer system, network or any Digital Format, and shall be free from viruses or malicious code;
3.1.13. the Material shall not be prejudicial or damaging to the reputation of NPG or the NPG Publications;
3.1.14. it shall provide NPG with all necessary Material by the date notified by NPG to the Customer, such date being of the essence. If the Customer fails to provide such Material by such date, the Customer acknowledges and agrees that NPG may not be able to fulfil its obligations under the Advertisement Order or these Terms and Conditions and accepts that NPG will not be liable for any such failure to any extent or at all;
3.1.15. it shall not without the prior permission of NPG embed any tracking device, cookies, beacon, floodlight or other technological device in or as part of an Advertisement published on any Digital Format that enables the Customer to track or analyse the online behaviour of any user to which such Advertisement is served; and
3.1.16. it has all necessary rights, licences and consents (including where necessary regulatory consents and consents from persons or entities cited or quoted in the Material) needed to permit NPG to use, display, reproduce, insert or publish the Material pursuant to clause 2.1.
3.2. The Publisher warrants to the Customer that it shall use reasonable care and skill in carrying out its obligations under these Terms and Conditions. Except as otherwise expressly provided herein, all conditions, warranties, terms, prior representations, and undertakings express or implied, statutory or otherwise in respect of the services provided hereunder by NPG are to the fullest extent permitted by law expressly excluded.
3.3. Without limiting clause 3.2, the Customer agrees and acknowledges that NPG makes no representation or warranty:
3.3.1. that any publication of any Advertisement will be confined to persons resident in any particular legal jurisdiction(s);
3.3.2. as to the exact number of page impressions that will be delivered on specific dates during an online campaign;
3.3.3. as to the quality of reproduction of Advertisements in any of the NPG Publications;
3.3.4. the exact layout and format of any NPG Publications which shall be in the discretion of NPG;
3.3.5. as to the availability of any Digital Format,
and in each case NPG accepts no liability to the Customer in respect of the same.
4. LIABILITY AND INDEMNITY
4.1. Nothing in this clause 4 shall be construed as excluding or limiting NPG’s liability for death or personal injury caused by its negligence or fraud.
4.2. Subject to clause 4.1, NPG shall not be liable to the Customer in contract, tort (including negligence) or otherwise for any indirect, consequential or special loss or any loss of Material, loss of profits, loss of business, loss of contracts, loss of orders, loss of revenue, loss of goodwill, loss of data or loss of anticipated savings.
4.3. Subject to clause 4.1, the liability of NPG in respect of any and all other claims (whether in contract or tort) arising out of or in connection with an Advertisement or Advertisement Order shall not exceed the amount the Customer has paid NPG in connection with that Advertisement or Advertisement Order.
4.4. The Customer agrees to on demand fully indemnify and keep fully indemnified NPG, its directors, agents and employees against any and all losses, liabilities, costs, claims, damages, demands, expenses and fees (including but without limitation legal and other professional fees) suffered or incurred by NPG arising out of or in connection with:
4.4.1. any other breach of these Terms and Conditions by the Customer; or
4.4.2. any actual or potential infringement of a third party’s intellectual property rights;
4.4.3. the publication by NPG of an Advertisement in accordance with an Advertisement Order.
5.1. The Customer shall pay NPG for all Advertisements submitted to NPG (and which are accepted by NPG) in accordance with this clause 5.
5.2. Rates for Advertisements are specified in the Rate Card or as may otherwise be agreed and/or notified in writing to the Customer from time to time. All rates are exclusive of VAT (or any other sales tax) which shall be due and payable by the Customer to NPG in addition.
5.3. Unless otherwise agreed by NPG in writing, NPG shall invoice the Customer for all amounts as they become due, which shall be after the date of first publication of the applicable Advertisement.
5.4. The Customer shall pay all invoices within 30 days of the date of the invoice.
5.5. Without prejudice to any other rights or remedies that NPG may have, if the Customer fails to pay NPG on the due date for payment, NPG may:
5.5.1. claim interest under the Late Payment of Commercial Debts (Interest) Act 1998 and the Customer shall pay the interest immediately on demand; and
5.5.2. remove any and all Advertisements NPG may have in any NPG Publications until payment has been made in full.
5.6. If, on the anniversary of the Publication Date and where applicable:
5.6.1. the number of Actual Advertisement Placements is less than the number of Expected Advertisement Placements for the preceding 12 month period, the Customer shall not be entitled to a refund of any amount from NPG;
5.6.2. the number of Actual Advertisement Placements is greater than the number of Expected Advertisement Placements for the preceding 12 month period, NPG shall apply the relevant rate (as set out in the Rate Card) applicable to the number of Actual Advertisement Placements. In the event that the Customer still owes any amount to NPG (notwithstanding the application of a lower rate pursuant to the Rate Card), NPG may invoice the Customer for such amount which shall be payable by the Customer in accordance with clause 5.4
5.7. The Customer may terminate any Advertisement in accordance with clause 6.1. The Customer has no other rights of cancellation. In the event that the Customer cancels an Advertisement other than in accordance with clause 6, the Customer acknowledges and agrees that it shall remain fully liable to pay to NPG for the Advertisement.
5.8. NPG reserves the right to change the rates in the Rate Card at any time and to publish the amended rates on nature.com. The then current prevailing Rate Card is available to the Customer on request from the NPG advertising department.
6.1. Once an Advertisement Order has been accepted by NPG, the Customer may only cancel or alter the Advertisement, the Materials or the Advertisement Order up to 8 weeks from the agreed insertion date of the Advertisement in the relevant NPG Publication. On the expiry of this date, the written consent of NPG is required for any and all cancellation or alteration pursuant to this clause 6.1. If such consent is not granted then the Customer will be liable for all sums due to NPG pursuant to clause 5.7.
6.2. Without prejudice to any other rights or remedies which NPG may have, NPG may terminate the contract between it and the Customer (without any liability) immediately on giving notice to the Customer in the event that if:
6.2.1. the Customer fails to pay any amount due to NPG on or by the due date for payment; or
6.2.2. the Customer commits a material breach of any of the material Terms and Conditions; or
6.2.3. the Customer repeatedly breaches any of these Terms and Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms and conditions; or
6.2.4. the Customer enters into liquidation whether compulsorily or voluntarily (otherwise than for the purposes of a solvent amalgamation or reconstruction); becomes insolvent; ceases or threatens to cease to carry on business; compounds or makes any voluntary arrangement with its-creditors; becomes subject to an administration order; is unable to pay its debts as they fall due; has an encumbrancer take possession of, or a receiver or administrative receiver appointed over, all or any part of its assets; takes or suffers any similar action due to debt; or if the equivalent of any of the above events under the law of any jurisdiction occurs in relation to the Buyer.
7.1. NPG reserves the right to place the word "Advertisement" in any Advertisement containing Material which NPG considers, in its sole opinion, to too closely resemble editorial content.
7.2. With the exception of the Customer’s payment obligations, neither NPG nor the Customer shall be liable to each other for any failure to comply with the provisions of these Terms and Conditions as a result of any event beyond the reasonable control of either of them.
7.3. Any notice or correspondence required to be given under these Terms and Conditions may be delivered personally or sent by prepaid registered post to the other party at the addresses set out in the Advertisement Order, or such other address as may be notified in accordance to the other party from time to time. Any notice so sent shall be deemed to have been duly given upon delivery at the address of the relevant party.
7.4. If any provision of these Terms and Conditions is held for any reason to be ineffective or unenforceable (in whole or in part) this shall not affect the validity or enforceability of the other Terms and Conditions set out herein, which shall remain in full force and effect.
7.5. A waiver by NPG of any breach if these Terms and Conditions will not be treated as a waiver of any subsequent breach of the same or any other provision by the Customer.
7.6. No third party shall have any rights to enforce these Terms and Conditions against NPG.
7.7. These Terms and Conditions and the Rate Card (both as amended from time to time in accordance with clause 7.12) shall constitute the entire agreement between the parties with regard to its subject matter and shall supersede all prior understandings, commitments and undertakings that either party may have given.
7.8. The contract between the Customer and NPG is personal to the Customer. The Customer may not assign, sub-license, sub-contract, transfer or charge the contract or any part of it without the prior written consent of NPG.
7.9. If NPG’s invoice(s) submitted to the Customer indicate that NPG’s contracting entity is Nature America, Inc. then these terms and conditions shall be governed by the laws of the State of New York without regards to any conflict of law provisions. Subject to clause 7.11, the parties submit to the exclusive jurisdiction of the courts located in New York, New York.
7.10. If NPG’s invoice(s) submitted to the Customer indicate that NPG’s contracting entity is either Macmillan Publishers Limited or Nature Japan KK (or it is unclear or ambiguous having regard to such invoice(s)) then these terms and conditions will be subject to the laws of England and Wales. Subject to clause 7.11, the Customer and NPG acknowledge and agree that the courts of the England and Wales will have exclusive jurisdiction to settle any such dispute which may arise out of these Terms and Conditions and shall submit all disputes to the jurisdiction of those courts.
7.11. Notwithstanding the provisions of clauses 7.9 and 7.10, for NPG’s exclusive benefit and to the extent possible in the applicable jurisdiction, NPG retains the right to bring or enforce proceedings as to the substance of the matter in the courts of the country of the Customer’s residence or, where these Terms are entered into in the course of the Customer’s trade or profession, the country of the place of business in which these Terms were agreed to or (if different) the country of Customer’s principal place of business.
7.12. NPG may from time to time modify these Terms and Conditions or the Rate Card by publishing any changes online. The Customer should check online before placing an Advertisement Order since by placing an order for the insertion of an Advertisement, the Customer agrees to be bound by any updates to such Terms and Conditions or Rate Card.
7.13. No variation or addition to these Terms and Conditions without the prior written consent of NPG shall be effective unless agreed to in writing by NPG and any additional terms the Customer may seek to impose shall be void and/or unenforceable.