ADDITIONAL TERMS & CONDITIONS
The following Additional Terms & Conditions (“Additional Terms”) apply to any Insertion Order (“IO”) entered into by an Advertiser and Morning Brew, Inc. (“Morning Brew”).
AGREEMENT. By executing an IO which incorporates these Additional Terms, the Advertiser agrees to:
- the IO,
- these Additional Terms,
- any addendum, schedule or exhibit attached to or incorporated by the IO (“Addenda”), including the DPA (as defined below), if the parties exchange personal information in connection with the provision of advertising; and
- the IAB/AAAA Standard Terms and Conditions for Internet Advertising 3.0 (“IAB Terms”), except to the extent the IAB Terms are modified by the IO, Additional Terms or Addenda.
The IO, these Additional Terms, any Addenda and the IAB Terms collectively form the “Agreement” between Advertiser and Morning Brew. The documents comprising the Agreement carry this descending order of precedence in case of conflict among their provisions: the DPA, the IO, the Additional Terms, any other Addenda, the IAB Terms.
ROLE OF THE PARTIES.
- Morning Brew is the Media Company for purposes of the IAB Terms.
- If an Agency enters this Agreement on behalf of any Advertiser, Agency represents and warrants that it is authorized to enter into the Agreement on behalf of Advertiser and that the Agreement is fully binding on Advertiser as if Advertiser signed the Agreement directly.
- If an Advertiser enters this Agreement directly, all “Agency” obligations in the IAB Terms are obligations of Advertiser, and any provisions in the IAB Terms that are particular to an agency in its role as agent for Advertiser will be disregarded.
SELECT DEFINITIONS. In this Agreement, these capitalized terms have the following meanings. See the IAB Terms for definitions of capitalized terms used but not defined in this Agreement.
- “Ad” means any advertisement provided by Advertiser or any Agency on behalf of an Advertiser.
- “Advertiser Materials” means any trademarks, audiovisual works, products, copy, whitepapers or other Content provided to Morning Brew by Advertiser or Agency for advertising purposes.
- “Content” means content of any type, including artwork, written works or audiovisual works (including audio ad reads).
- “Branded Content” is Content is not part of Morning Brew’s normal slate of Content but is produced expressly for the benefit of an Advertiser to be distributed through Morning Brew’s owned and operated channels along with other Morning Brew Content.
- “Produced Content” is Content Morning Brew creates for Advertiser to be owned by Advertiser and to be used by Advertiser as Advertising Materials to be distributed outside of Morning Brew’s owned and operated channels.
- “Sponsored Content” is Content produced by Morning Brew as part of its normal slate of Content and is sponsored by Advertiser or into which Advertiser’s Custom Materials or Advertising Materials are incorporated.
- “Custom Materials” means any Content written by Morning Brew for Advertiser to serve as Advertising Materials, including whitepapers (if written by Morning Brew) newsletter posts, ad reads, co-written articles and Branded Content.
- “DPA” means Morning Brew’s data protection agreement, available at here, an Addendum which applies to any personal information (as defined in the DPA) exchanged by the parties in connection with the provision of advertising under this Agreement.
- “Exposure Live Date” means the specific date when Advertising Materials are published.
- “Events” are any live or virtual events identified on the IO, which are governed by the Event Terms at the end of these Terms.
- “Flight” means, with respect to Sponsored Content, a specific window of time during which any of Advertiser’s Sponsored Content will run on Morning Brew’s newsletter.
- “Native Advertising” means any Custom Materials that bear a similarity to news, feature articles, product reviews, entertainment, or other editorial or unpaid content or materials surrounding it.
- “Newsletter” means any Morning Brew publication emailed to subscribers of the publication, such as Morning Brew, Marketing Brew, Retail Brew, Tech Brew, HR Brew, IT Brew, CFO Brew and Healthcare Brew.
DUE DATES. The following deadlines apply to Advertiser’s review and approval of copy of Custom Materials:
- With respect to any Sponsored Content scheduled to be published during a Flight window, Morning Brew will use commercially reasonable efforts to notify Advertiser of the specific Exposure Live Date of such Sponsored Content approximately 2 weeks prior to the applicable Exposure Live Date.
- Advertiser is allowed one revision of copy for Custom Materials (unless otherwise agreed with Morning Brew) after receiving the first draft of copy from Morning Brew.
- Morning Brew will use commercially reasonable efforts to submit copy for approval approximately 2 weeks prior to Exposure Live Date.
- After providing copy, Morning Brew requires FINAL approval of copy for Custom Materials at least 1 week prior to Exposure Live Date.
If approval of proposed Custom Materials is not received by that date, Morning Brew will have the right to proceed in any of the following ways (and will use its commercially reasonable judgment to choose which is most appropriate for the situation): (i) deem the copy approved and utilize it, (ii) utilize previously approved copy, (iii) utilize copy consistent with previously-approved copy, or (iv) not run the Custom Materials, all without penalty. If Morning Brew does not run the Custom Materials, it cannot guarantee we will have the availability to run a replacement exposure at a later date.
Advertiser acknowledges that there may be penalties for lost inventory that could not be filled due to late creative or late approvals. The parties may mutually agree on different deadlines for last minute placements.
APPROVALS. Advertiser will have the right to provide one set of comments on Custom Materials. If any Custom Materials are audio-visual in nature or constitute ad reads to be read during a recording of a podcast, Advertiser’s right to provide comments will be limited to the copy of the script, not the final produced Custom Materials. For clarity, Advertiser has no other approval rights over the scripts, topics, guests or final production of any Sponsored Content (including the Content in newsletters, podcasts and video series) except to the extent Custom Materials are included therein (with approval over such Custom Materials to be governed by the terms herein). However, Morning Brew makes the commitment to all advertisers that it will maintain its brand integrity and high journalistic standards throughout all Sponsored Content.
COPY DETAILS. The following word limits apply to these types of Custom Materials in Newsletters, including “Newsletter Takeover” copy:
- “Presenting Placement” copy —150 word limit (120 for Morning Brew and Money with Katie)
- “Brand Booster Placement” copy — 50 word limit
- “Direct Response Placement” copy — 20 word limit
- “Resource Roundup Placement” copy — 35 word limit
EXCLUSIVITY. If either party is subject to an exclusive relationship with the other in any manner, the express terms of such exclusive relationship shall be set forth in the IO. Notwithstanding the foregoing, with respect to any newsletter posts constituting Custom Materials, Morning Brew will ensure category exclusivity on Advertiser’s day-of-run in that day’s newsletter but, for the sake of clarity, this does not mean Advertiser will have 100% share of voice (SOV) in the newsletter, unless otherwise specified by Morning Brew. Any episodic exclusivity will not apply to ad served media. If the IO does not set forth any exclusivity requirements, the IO shall be deemed non-exclusive in all respects.
FLIGHTS. Advertiser acknowledges that if the IO indicates that Sponsored Content will publish during a Flight, Morning Brew is not guaranteeing an Exposure Live Date on any specific date during that Flight, only that Advertiser’s Sponsored Content will run at some point during the indicated Flight. Any estimated or quoted Exposure Live Dates are estimates, not guarantees. For any Newsletter Sponsorship Flight, the base rate is based on a four (4) week window. A Newsletter Sponsorship Flight can be narrowed or more targeted for a specific Exposure Live Date, subject to availability and a premium upcharge above the base rate (with upcharges increasing the more targeted the Flight becomes). If at any point after execution of an IO, Advertiser desires a narrower Newsletter Sponsorship Flight window or a targeted Exposure Live Date, Morning Brew will use commercially reasonable efforts to accommodate such a request should availability exist provided that Advertiser agrees that it will incur a premium upcharge in exchange therefor. In furtherance of the foregoing, Advertiser expressly acknowledges and agrees that Morning Brew cannot guarantee that Advertiser’s Sponsored Content in connection with the Newsletter will run on any specific date unless Advertiser pays a premium upcharge to secure that date.
TO BE DETERMINED SPEND. Any To-Be-Determined spend within an IO must be executed in full during a flighted quarter. Morning Brew will present Advertiser ideas for To-Be-Determined spend no later than ninety days prior to the commencement of the Flight. Advertiser must work with Morning Brew and come to a mutually agreed upon deliverable no later than 60 days prior to the commencement of the To-Be-Determined Flight. Failure to greenlight To-Be-Determined spend will still result in invoicing Advertiser in full during specified Flight.
BILLING. All payments are due net 15 days after invoice date unless otherwise expressly agreed pursuant to written terms in the IO. If Advertiser’s account is past due, Morning Brew may suspend performance and/or may require prepayment with respect to future IOs. Rates in an IO are only valid for 30 days after receiving the IO (subject to change thereafter). Notwithstanding anything to the contrary contained in the IAB Terms, Agency and Advertiser are jointly and severally responsible for the payment of all amounts due for advertising published by Morning Brew pursuant to this Agreement and, in the event of any default in the payment of any amount due under this Agreement, any third-party costs incurred by Morning Brew to collect any unpaid amounts, including any agency and attorney fees and court costs.
INVOICING. Morning Brew will accept payments via Check or ACH with the following details:
- Mailing Address: Morning Brew, PO Box 1817, New York, NY 10159.
- Make checks out to Morning Brew Inc.
ACH payment information
- Account Number: 939295163
- Routing Number: 021000021
- Account Name: Morning Brew Inc.
CANCELLATION. Unless otherwise expressly stated in an IO, the following advertising benefits in an IO are strictly non-cancellable: (i) ‘presenting sponsor’ arrangements and event sponsorships; (ii) any benefits that give exclusivity of any kind to Advertiser (including, for example, category exclusivity); and (iii) benefits that include the creation of Branded Content. With respect to cancellations of any other type of Custom Materials, in order to cover Morning Brew’s losses for inventory that may not be able to be resold, such cancellations are subject to the following fee as applicable: if the cancellation occurs between 0-9 days prior to Exposure Live Date, Advertiser must pay 100% of the fee; if the cancellation occurs between 10-29 days prior to Exposure Live Date, Advertiser must pay 75% of the fee; if the cancellation occurs between 30-59 days prior to Exposure Live Date, Advertiser must pay 50% of the fee; if the cancellation occurs between 60 -89 days prior to Exposure Live Date, Advertiser must pay 25% of the fee. (For any Flight-based fees, the term “Exposure Live Date” in the preceding sentence will be replaced with the “Flight start date”). Inventory movements will not incur a fee if the placement is 90 days or more out, but the Advertiser will be charged for any inventory pricing adjustments based on the updated Flight. If Advertiser has received bulk discounts, cancellation of certain inventory may result in forfeiture of such discounts, which may be retroactive. Upon termination of this Agreement for any reason, all outstanding amounts owed to Morning Brew shall become immediately due and payable in full, regardless of any credit terms that may have been applicable to Agency or Advertiser. Morning Brew has the ability to cancel a contract or any ad placement at least 1 month in advance of next ad placement and as otherwise set forth herein. Morning Brew has the right in its discretion to terminate this Agreement for convenience, and/or to refuse to run or remove any Ad at any time for any reason (such as late creative, bad UX/UI, negative press or bad reputation of Advertiser, disparagement by Advertiser) or for convenience.
MEDIA COMPANY RIGHTS. Morning Brew has the right to optimize campaigns for purposes of seeking better performance, even if optimization may result in uneven delivery of inventory. After the Flight (or 60 days after the applicable Exposure Live Date, whichever is sooner), Morning Brew may replace advertising elements in this Agreement with other content such as DAIs.
DELIVERY. Media plans or proposals may include estimates of performance, such as views, downloads, open rates, response rates or impressions (such as for Branded Content in Newsletters, social or podcasts, or products like surveys and gated Content) or audience composition (such as segmentation). Estimates are provided for Advertiser’s information only. Estimates of audience composition may be based on data self-reported by users. No estimates are guarantees, and no fees are based upon performance, including achievement of any estimates. In the event that actual performance for any campaign falls below (or is expected to fall below) any such estimates, Morning Brew will not be in breach of this Agreement in any manner. However, Morning Brew may (but is not required to), in its good faith discretion, choose to either (i) provide makegoods (which may include an extension of service until the guaranteed delivery volume has been achieved, or substitution with alternate promotions having similar overall value) or (ii) invoice for only the volume delivered on a pro-rata basis (or providing a credit for the undelivered volume if payment has previously been made). For clarity, this amends the IAB Terms, and expressly supersedes Sections VI(a) and VI(b) of the IAB Terms. Any credit provided but unused 12 months after issuance will be forfeited. For clarity, Morning Brew will not in any way be responsible or be expected to consider either measure (i) or (ii) above with respect to any under-delivery that is due to late delivery by Advertiser or Agency of any Ad, creative, copy or other material or to any other failure by Advertiser or Agency. In the event of a discrepancy between measurements pursuant to section XIII(d) of the IAB Terms, Morning Brew’s measurements will control, provided that its ad server is complaint with the IAB/AAAA Guidelines. For clarity, and without limiting the foregoing, all Advertising is based on flat fees for specified placements. Morning Brew makes no guarantees relating to performance such as clicks, open rates, conversions, even if anticipated, average or typical performance metrics are discussed during the sales process.
NATIVE ADVERTISING. Each party represents, warrants and covenants that it will require all materials provided pursuant to this Agreement to distinguish paid and editorial content and otherwise comply with FTC rules and guidelines for Native Advertising (the “FTC Guidelines”).
ADVERTISER CONTRIBUTIONS. If Advertiser provides certain products, services, or prizes and/or makes available any of its employees, agents, representatives, premises, or spokespersons in connection with this Agreement, Advertiser will provide such contributions at its own cost and expense (including related insurance if appropriate based on industry standards), in accordance with any mutually agreed schedules. If Advertiser provides Advertising Materials or advises Morning Brew to include any claims, information, or content about Advertiser’s business, products, or services (or those of Advertiser’s competitors) (“Claims”), Advertiser is solely responsible for ensuring the accuracy and substantiation of all such Claims. If Advertiser operates in an industry subject to industry-specific laws, rules, regulations, minimum standards, or guidelines (e.g., auto, alcohol, tobacco, CBD/cannabis) (“Advertiser Industry Regulations”), as between the parties, Advertiser will be solely responsible for compliance of any Ads, including Custom Materials, with Advertiser Industry Regulations (provided that Morning Brew will use good faith efforts to follow any guidelines provided to it by Advertiser with respect to compliance with Advertiser Industry Regulations). Advertiser represents and warrants, and will indemnify Morning Brew with respect to, the following: Advertiser and its Claims will comply with all applicable laws (including, for example, any Advertiser Industry Regulations); no Claims will be deceptive or misleading; Agency and Advertiser have the right to provide Advertiser Materials to Morning Brew and the reproduction, display, distribution, exhibition and publication of the such Advertiser Materials by Morning Brew will not infringe upon, violate or give rise to any adverse claim with respect to any intellectual property, proprietary or personal rights of any third party or violate any laws; Advertiser has the right to authorize Morning Brew to reproduce, display, distribute, exhibit and publish any Ads provided by Advertiser.
IP OWNERSHIP AND USAGE RIGHTS. Each party exclusively owns and will retain all right, title and interest in and to its trademarks and other intellectual property (“IP”) including, for example, any IP it may create or provide in connection with this Agreement. Without limiting the foregoing, Advertiser retains all IP rights with respect to Advertiser Materials. Neither party intends to (and nothing contained in this Agreement will) convey any right, title, or interest in or to any of its IP. Advertiser acknowledges and agrees that, as between the Parties, Morning Brew is the sole and exclusive owner of all rights, title, and interest in and to all Sponsored Content and all Custom Materials set forth in or relating to this Agreement, and all benefits and uses thereof will inure to the benefit of Morning Brew. Advertiser acknowledges that nothing in an IO will be Produced Content unless the executed IO expressly defines specific Content as Produced Content (using that capitalized term) and that such Produced Content shall be owned by Advertiser. Unless otherwise expressly set forth in the IO, Advertiser may not edit or otherwise modify any Morning Brew IP (including Custom Materials) nor use any such IP without the prior written consent of Morning Brew, provided that Advertiser is free to “like”, “share”, and use similar social media platform features to engage with Custom Materials posted by Morning Brew via Advertiser’s official social media channels, subject to these terms. Unless otherwise set forth in the IO, Morning Brew will have ultimate creative control with respect to any Custom Materials (subject to Advertiser’s rights to provide input on copy as set forth herein) and provided further that Morning Brew will only use Advertiser IP assets within Custom Materials that have been provided, or reasonably approved, by Advertiser. Advertiser may not directly or indirectly purchase paid promotion for any Morning Brew IP (e.g., Custom Materials) from any third party including, but not limited to, via third party advertising and content distribution networks (e.g., Outbrain), social media platforms (e.g., Facebook), and programmatic advertising, unless approved in each instance by Morning Brew. Advertiser consents and gives license to allow Morning Brew the right to use Advertiser’s name on its web site, social media sites and in marketing materials, in a listing of companies that are using or have used its services.
MISCELLANEOUS. Morning Brew will have no obligation to agree to any proposed revision of a previously agreed IO, including any change to or substitution for the Ad, any change to the positioning of the Ad or any change to the campaign run dates. No purchase order, insertion order or other terms issued or provided by the Advertiser or Agency with respect to the campaign that is the subject of this Agreement, will have any binding force or effect unless fully and mutually executed by the parties. Neither party will be liable to the other party hereunder or pursuant to this Agreement for any indirect, consequential, exemplary, special, incidental, or punitive damages including, but not limited to, loss of goodwill, lost profits, business interruption, loss of programs or other data, even if either party has been advised of the possibility of such damages or claim. Section XIV(d) of the IAB is amended to stipulate “New York” in each blank field. Any words following the terms “e.g.,” “including,” “in particular,” “for example”, “such as” or any similar expression are illustrative, non-exhaustive and do not limit the sense of the words, description, definition, phrase or term preceding those terms.
LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL MORNING BREW’S MAXIMUM AGGREGATE LIABILITY TO ADVERTISER OR AGENCY WITH RESPECT TO ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ITS TERMINATION OR EXPIRATION OR ANY AD, EVENT OR CONTENT OF ANY TYPE, WHETHER SUCH LIABILITY IS UPON CONTRACT, WARRANTY, TORT, FAILURE OF ESSENTIAL PURPOSE, TRADE USAGE OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO MORNING BREW BY ADVERTISER HEREUNDER PURSUANT TO THIS IO DURING THE PERIOD OF ONE MONTH TERMINATING ON THE DATE ON WHICH THE CLAIM ACCRUED.
EVENT TERMS. These Event Terms control over any contrary provisions in these Terms with respect to Events. As used in these Event Terms, “Event Materials” means advertising or promotional materials of any type promoting Advertiser or its products, including artwork, signage and displays, which Morning Brew has agreed to display or include at the Event pursuant to the IO.
- Recognition; orchestration. Morning Brew will recognize Advertiser as a sponsor of the Event, consisting of the designation and benefits solely as set forth in the IO (unless otherwise agreed by the parties in writing). All Event matters, including Event dates and locations, will be as determined and subject to modification by Morning Brew.
- Availability. If a specific benefit becomes unavailable, Morning Brew will use reasonable efforts to replace such benefit with an available benefit or makegood of commensurate value. If the Event is cancelled due to a Force Majeure event (which may include, without limitation, the current and ongoing COVID-19 pandemic or health and safety rules or guidelines related thereto), Morning Brew will have the option to either: (i) retain the monies and reschedule the Event within a reasonable time of its originally scheduled date; (ii) apply the sponsorship fee to an alternate event mutually agreed upon by the parties (such agreement not unreasonably withheld); or, if options (i) and (ii) are not possible using good faith efforts, (iii) cancel the Event and refund the applicable sponsorship fee to Advertiser (less a pro-rated portion for any performance or services rendered to date).
- Approvals. Advertiser will have the right to approve of any Event Materials. Morning Brew requires FINAL approval of copy for Event Materials at least 2 weeks prior to the Event date (unless third party requirements (e.g., printing) require earlier approval). If approval of proposed Event Materials is not received by that date, Morning Brew will have the right to proceed in any of the following ways (and will use its commercially reasonable judgment to choose which is most appropriate for the situation): (i) deem the Event Materials approved and utilize them or (ii) utilize previously approved Event Materials, (iii) utilize copy consistent with previously-approved copy, or (iv) not run the Event Materials, all without penalty. If Morning Brew does not run the Event Materials, it cannot guarantee we will have the availability to run a replacement exposure at a later date.