TERMS & CONDITIONS
Entire Agreement. The parties acknowledge and agree that this Agreement consists of the following documents: (i) the “Sales Agreement”, as applicable; (ii) these Terms & Conditions; (iii) The General Terms & Conditions available at (opens in a new tab); (iv) where Marketing Services are ordered, the DMS(Digital Marketing Services)Terms & Conditions available at (opens in a new tab); (v) where digital advertising (“Digital Advertising”) is ordered, ADFUEL Media Inc. agrees to comply with the following provisions of the IAB Canada Standard Terms & Conditions: II (Insertion Orders and Inventory Availability), III (Ad Placement and Positioning), V (Reporting), VI (Cancellation), VII Make Goods), VIII (Bonus Impressions) and Appendix A (Late Creative Policy) (items (i) to (iv) collectively the “Agreement”). The Agreement constitutes the entire agreement between the parties and supersedes all previous communications, understandings and agreements, either oral or written, between the parties with respect to the subject matter hereof and of the Insertion Order and/or Sales Agreement. Capitalized terms used but not defined herein shall have the meanings given to them in the General Terms & Conditions and/or the DMS Terms & Conditions.
2. SUBMISSION REQUIREMENTS, CUSTOMER MATERIALS 7 ADVERTISING CONDITIONS
2.1 Submission of Customer Materials. Customer, at its expense, agrees to supply to ADFUEL Media Inc. the required, advertiser-approved, fully-functional, final ad creative (the “Customer Materials”) for Digital and Print Advertising or Marketing Services (including GIF, Flash and Rich Media files etc.), along with HTML links, at least five (5) business days before the advertisement (“Advertisement”) launch date (“Launch Date”) as specified in the Customer’s Insertion Order and/or Sales Agreement. Failure by Customer to submit the Customer Materials within the applicable deadlines shall relieve ADFUEL Media Inc. from any obligation with respect to such Advertisement and ADFUEL Media Inc. shall have the right, but not the obligation, to run a public service announcement ad in lieu of Customer’s Advertisement and charge Customer for the Fees related to such Advertisement, as outlined in the applicable Insertion Order and/or Sales Agreement.
2.2 Cancellations or Changes. Cancellations or changes to Insertion Orders, Sales Agreements, Launch Dates and/or corrections to Advertisements must be received in writing by ADFUEL Media Inc. no later than 5:00 p.m. EST (Eastern Standard Time), at least two (2) business days prior to the insertion or pre-print press date indeterminate. (“Material Deadline”) and must be acknowledged by ADFUEL Media Inc., in writing. Where cancellations or changes are received after the Material Deadline, Customer will be held responsible for the full cost of the Advertisement, set forth in the applicable Insertion Order and/or Sales Agreement, even if ADFUEL Media Inc. cannot comply with the late request. During the Term of any Insertion Order and/or Sales Agreement, if the Customer’s objectives change and/or if the amount of work required to achieve Customer’s goals changes, ADFUEL Media Inc. will provide a revised quote to continue or upgrade services to meet Customer’s goals. Customer may approve any such recommendation provided by ADFUEL Media Inc. either via signed Insertion Order and/or Sales Agreement or, in electronic format, either via e-mail or an online order form.
2.3 Customer Materials. The Customer Materials shall comply with all Applicable Laws and advertising standards and practices as the same may be modified from time to time. Customer hereby represents and warrants that it has all right and title (or license thereto) in and to the Customer Materials and that ADFUEL Media Inc.’s use thereof in connection with the provision of Marketing Services will not infringe upon or violate any Applicable Laws or regulations or any third party rights including, without limitation, infringement of third party intellectual property rights.
2.4 ADFUEL Media Inc. Discretion. ADFUEL Media Inc. reserves the right to edit, revise or reject any Advertisement, including any Customer Materials included therein.
2.5 Advertising Placement. Customer understands and agrees that all Digital Advertising displayed through ADFUEL Media Inc.’s programmatic trading desk is placed for best optimization based on Third Party Technology and ADFUEL Media Inc. does no determine the placements of such Digital Advertising, nor does ADFUEL Media Inc. assume any responsibility or liability for the same. All Digital and Print Advertising placement positions on ADFUEL Media Inc.’s assets or ADFUEL Media Inc.-managed platforms are at the sole discretion of ADFUEL Media Inc. ADFUEL Media Inc. will seek to comply with Advertisement placement requests and other stipulations that appear in a Customer’s Insertion Order and/or Sales Agreement but dos not guarantee that the same will be followed. Unless a premium position fee has been paid by Customer, no adjustments, reinstatements or refunds will be made because of the Advertisement placement of a print Advertisement or the location of a directly sold Digital Advertisement. While payment of a premium position fee does not guarantee any specific Advertisement placement, whether print or digital, the Customer shall receive a pro-rata refund of any Fees paid in the event that ADFUEL Media Inc. is unable to provide the requested Advertisement placement.
2.6 License to Customer Materials & Name. Customer hereby grants to ADFUEL Media Inc. a non-exclusive, royalty-free, irrevocable, worldwide, perpetual license to use, copy, modify, publicly perform, display, broadcast and transmit the Customer Materials for the purpose and to the extent necessary for ADFUEL Media Inc. to publish any Advertisements and/or perform the Marketing Services contemplated by an Insertion Order and/or Sales Agreement and this Agreement. All title to and ownership of all Customer Materials shall remain with Customer or its third party licensors. In addition, Customer agrees that ADFUEL Media Inc. may, during the Term and thereafter, use, publicly perform, display, broadcast and transmit the Customer Materials and the Customer’s name (including any trade name, trademark, service mark and/or logo therein) in ADFUEL Media Inc.’s own print, digital video and website marketing, promotion and advertising campaigns for ADFUEL Media Inc.’s own products.
3. AGENCY & PERMISSIONS
3.1 In the event that Customer engages ADFUEL Media Inc. to purchase advertising inventory on its behalf, Customer hereby appoints ADFUEL Media Inc. as an agent for such purposes. Customer represents and warrants that, in the event that Customer requests advertising on behalf of another company (the “Authorizing Company”), Customer has been authorized by the Authorizing Company to act as its agent in all respects relating to this Agreement, including, without limitation, the making of any elections or giving of any consents. Any advertising arrangements entered into by ADFUEL Media Inc. on behalf of Customer shall constitute binding commitments of Customer, in accordance with the terms and conditions accepted by ADFUEL Media Inc. on behalf of Customer.
4. TERM AND TERMINATION; SUSPENSION
4.1 Term. The Agreement becomes effective on the date of the last signature of the
Insertion Order and/or Sales Agreement (the “Effective Date”) and, subject to earlier termination in accordance with the terms of this Agreement, shall continue until the end of the latest of the “Duration” specified in the Insertion Order and/or Sales Agreement (altogether, the “Term”), or, in the case of Subscription Services, will continue until a written request to terminate the Agreement is received within the identified termination or cancellation notice period, as outlined in the applicable Insertion Order and/or Sales Agreement. Individual Advertising and/or Marketing Services may be provided for different Durations within the Term, as set for in each applicable Insertion Order and/or Sales Agreement.
4.2 Duration & Termination for DMS. Each of the Advertising (print or digital) or Marketing Services selected in the Insertion Order and/or Sales Agreement (if any) will be provided for the minimum Campaign or Subscription Duration specified therein. Advertising or Marketing Services identified as “Campaigns” on the Insertion Order and/or Sales Agreement will be provided for the set Duration identified therein and may not be terminated without payment in full of all applicable Fees for the Term of such Campaigns. Advertising or Marketing Services identified as “Subscriptions” on the Insertion Order and/or Sales Agreement will be provided the minimum Subscription Duration identified thereon, and the Subscription will automatically renew until Customer cancels such Subscription by providing prior written notice within the number of days prescribed on the Insertion Order and/or Sales Agreement. In addition to the foregoing, the following shall apply for specific Marketing Services:
4.2.1 In the case of IHome Finder services, the Agreement continues in effect until Customer cancels the DDS services on thirty (30) days’ prior written notice to ADFUEL Media Inc.
4.2.2 In the case of Responsive Websites, Local Search Optimization (“LSO”) and Real Estate Website and Hosting (“RE Site”) Marketing Services, the Agreement shall have an initial Subscription Duration of twelve (12) months and will automatically renew annually thereafter for additional Subscription Durations of twelve (12) months (each a “Duration Renewal”) until Customer terminates the Agreement by providing at least sixty (60) days’ written notice to ADFUEL Media Inc. prior to the end of the initial Subscription Duration or any Duration Renewal.
4.2.3 In the case of Social Media Management (“SMM”), Live Chat Services, Search Engine Optimization (“SEO”) Marketing Services, the Agreement will be in effect for the minimum Subscription Duration identified on the Insertion Order and/or Sales Agreement, and shall automatically renew on a month to month basis thereafter until Customer terminates the Agreement by providing written notice to ADFUEL Media Inc. at least sixty (60) days prior to the end of the initial Subscription Duration, or anytime thereafter; provided that, after the initial Subscription Duration, the sixty (60)-day prior notice of termination will begin to accrue from the first date of the Customer’s next billing cycle.
4.2.4 In the case of Search Engine Marketing (“SEM”), the Agreement will be in effect for the minimum Subscription Duration identified on the Insertion Order and/or Sales Agreement, and shall automatically renew on a month to month basis thereafter until Customer terminates the Agreement by providing written notice to ADFUEL Media Inc. at least thirty (30) days prior to the end of the initial Subscription Duration, or anytime thereafter; provided that, after the initial Subscription Duration, the thirty (30)-day prior notice of termination will begin to accrue from the first date of the Customer’s next billing cycle.
4.3 Termination for Cause. Either party may terminate the Agreement for cause: (i) on thirty (30) days prior written notice (the “Notice Period”) if the other party is in material breach of its obligations under this Agreement and such breach has not been cured by the conclusion of the Notice Period; or (ii) immediately, upon written notice, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. No other means of termination by Customer will be valid, unless otherwise expressly specified in and Insertion Order and/or Sales Agreement.
4.4 Termination or Suspension by ADFUEL Media Inc. ADFUEL Media Inc. may terminate the Agreement, without liability: (a) for convenience upon thirty (30) day’s notice; (b) immediately, if Customer fails to pay its Fees as they become due on two (2) or more occasions during the Term; or 9(c) immediately in the event of a breach by Customer of any Applicable Laws including, without limitation, privacy laws and CASL.
4.5 Suspension by ADFUEL Media Inc. ADFUEL Media Inc. may, upon notice to Customer, immediately suspend the Customer’s access to the Advertising and/or Marketing Services should Customer fail to comply with any terms of this Agreement, including payment of any Fees (each, a “Breach”), until such time as the Breach is corrected by the Customer. If such Breach is not cured by Customer within thirty (30) days of notice by ADFUEL Media Inc., ADFUEL Media Inc. shall have the right to terminate this Agreement in accordance with Section 4.3 above.
4.6 Early Termination Payments. If ADFUEL Media Inc. terminates this Agreement pursuant to Sections 4.3, 4.4(b) or 4.4(c), all unpaid Fees set forth in each Insertion Order and/or Sales Agreement or Advertising Advertisement for the duration of the Term (including Fees for Marketing Services) shall become immediately due and payable by Customer (the “Early Termination Payment”). The Early Termination Payment is not a penalty but an estimate of damages suffered by ADFUEL Media Inc. as a result of early termination of services.
4.7 No Refunds. In addition to the foregoing, if ADFUEL Media Inc. suspends or terminates this Agreement pursuant to Sections 4.3, 4.4 or 4.5, Customer acknowledges and agrees that it will not be entitled to any refund for any pre-paid Fees, nor will such suspension or termination relieve Customer of its obligation to pay any Fees owing to ADFUEL Media Inc. for the period prior to the effective date of termination. Notwithstanding the foregoing, if Customer terminates this Agreement pursuant to Section 4.3, Customer shall be entitled to a return of a pro-rata sum of any pre-paid Fees for any services not rendered as a result of such termination.
5. FEES AND PAYMENTS
5.1 General. In addition to those payment terms set out in Section 5.2 below, once an Insertion Order and/or Sales Agreement has been accepted by ADFUEL Media Inc., Customer shall be responsible for payment of all fees (“Fees”) in respect of the Advertising and/or Marketing Services set forth therein. All Fees due hereunder shall be in Canadian Dollars ($CAD) and are exclusive of any goods and services, sales, use, or similar taxes (“Taxes”) that are applicable to the Advertising and/or Marketing Services. Customer agrees to pay all Taxes when due, which ADFUEL Media Inc. shall detail in the applicable invoice.
5.2 Payment Terms. If ADFUEL Media Inc. elects, in its sole discretion, to extend credit terms to Customer, then ADFUEL Media Inc. shall invoice Customer for the Fees and applicable Taxes on a monthly basis and shall process payments directly from the Customer’s credited account. In all other instances, the Fees and applicable Taxes shall be billed monthly, in advance, and Customer shall pay such Fees and applicable Taxes within thirty (30) days of the date on the invoice. Failure to pay any amounts owing when due, including, without limitation, as a result of credit card denial, will constitute a Breach by Customer under this Agreement. Upon the occurrence of any such Breach, ADFUEL Media Inc. may, at its option, declare all payments in respect of the Advertising and/or Marketing Services immediately due and payable in accordance with Section 4.6 hereof.
5.3 Overdue Amounts. All overdue Fees shall be subject to interest at a rate of two percent (2%) per month (being 24% per annum) or as permitted by Applicable Law. Customer agrees to pay all costs of collection (including legal fees and costs and all other legal and collection expenses) incurred by ADFUEL Media Inc. in collecting overdue payments due under this Agreement.
5.4 Overage Fees. To the extent applicable to Advertising and/or Marketing Services hereunder, ADFUEL Media Inc. will charge Customer for services provided that are beyond the scope of the Customer’s Insertion Order and/or Sales Agreement (Overage Fees”), subject to notice to and approval by Customer, in writing, of both the additional services provided and the associated Overage Fees. There will be a minimum charge of thirty (30) minutes for any additional Advertising or Marketing Services provided. Customer may approve the above via a signed Insertion Order and/or Sales Agreement or, in electronic format, either via e-mail or an online order form. Overage Fees charged will be based on ADFUEL Media Inc.’s then-current hourly rate for the applicable Advertising or Marketing Services, unless a different hourly rate has otherwise been agreed to in writing between the parties. ADFUEL Media Inc. reserves the right to increase its standard hourly rate on an annual basis.
5.4.1 In the case of Managed Live Chat Services, if Customer has purchased the Live Chat Overage option, the Overage Fees will be billed monthly based on the total Overage Fee calculated for the previous billing period and such Overage Fees will be invoiced and charged to the Customer’s credit card.
5.4.2 In the case of Responsive Website and Campaign Landing Page Design and
Hosting services, in the event that the Customer requires assistance beyond the
scope of services outlined in an Insertion Order and/or Sales Agreement, in order to remedy an issue with a Customer Site, which issue is not caused by ADFUEL Media Inc. or the HPC, Overage Fees will apply.
5.4.3 In the case of Call Tracking, if Customer has gone over their allotted usage of minutes, as outlined in the Insertion Order and/or Sales Agreement, the Overage Fees will be billed monthly based on the previous billing period and such Overage Fees will be invoiced and/or charged to the Customer’s credit card.
6.1 Customer Indemnity. Customer will indemnify, defend and hold harmless ADFUEL Media Inc. and its subsidiaries, affiliates and parent companies and each of their respective directors, officers, agents, employees, successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including, without limitation, reasonable attorneys’ fees and expenses) incurred in connection with any claim, action or proceeding arising from or relating to: (a) the violation by Customer of any rights of any third party, including intellectual property, privacy, publicity or other proprietary rights; (b) Advertisements or Customer Materials including, but not limited to, allegations that such Advertisements, Customer Materials or other subject matter are defamatory or obscene, or violate any Applicable Laws, regulations or other judicial or administrative action; (c) the sale, license or provision of Customer’s goods or services; (d) Customer’s online use of competitor “keywords”; (e) Customer’s violation or alleged violation of any applicable laws, including without limitation, any privacy laws; and (f) any willful, intentional or negligent act, omission or misrepresentation by Customer.
6.2 Notwithstanding Customer’s obligation to defend and indemnify ADFUEL Media Inc., ADFUEL Media Inc. reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer. If ADFUEL Media Inc. does assume the defense of such a matter, Customer will reasonably cooperate with ADFUEL Media Inc. in such defense. Customer will not enter into any settlement or compromise of any such claim, which settlement or compromise would result in any liability to, or any admission of wrongdoing by, any indemnified person or entity, without ADFUEL Media Inc.’s prior written consent.
7. DISCLAIMER OF WARRANTIES
ADFUEL MEDIA INC. PROVIDES THE ADVERTISING AND ALL MARKETING SERVICES ON AN
“AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OR ANY KIND, EITHER
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE OR RESULTS TO BE ACHIEVED. NO ADVICE, CONTENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM POSTMEDIA OR ITS AFFILIATES THROUGH ANY INSERTION ORDER AND/OR SALES AGREEMENT AND/OR THE MARKETING SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT.
8. LIMITATIONS OF LIABILITY
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED COMMUNICATIONS, LOSS OF USE, LOST BUSINESS, LOST DATA OR LOST PROFITS (EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE FOREGOING EXCLUSION OF LIABILITY WIL NOT APPLY TO (I) CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER; (II) CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER; (III) CUSTOMER’S CONFIDENTIALITY AND PRIVACY OBLIGATIONS HEREHUNDER; AND (IV) CUSTOMER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
8.2 WITHOUT LIMITING GENERALITY OF SECTION 8.1, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ADFUEL MEDIA INC. EXPRESSLY DISCLAIMS, AND WILL HAVE NO LIABILITY WHATSOEVER, FOR ANY; (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR INFORMATION; (II) CLAIMS RELATING TO BREACH OF INTELLECTUAL PROPERTY LAWS OR DEFAMATION; (III) DAMAGE, SUITS AND/OR CLAIMS THAT ARISE FROM ANY THIRD PARTY TECHNOLOGY, ANY THIRD PARTY PRODUCTS OR SERVICES, OR ANY THIRD PARTY CONTENT.
8.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL ADFUEL MEDIA INC.’S CUMULATIVE, AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY EXCEED THE AMOUNT PAID BY CUSTOMER TO ADFUEL MEDIA INC. UNDER THIS AGREEMENT IN THE 12 MONTHS’ PRECEDING THE CLAIM.
9. CONFIDENTIALITY AND PRIVACY CONSIDERATIONS
9.1 Confidentiality. By virtue of this Agreement each party (“Receiving Party”) may have access to information that is confidential to the other party (“Disclosing Party”). Receiving Party agrees to keep confidential, and not disclose, the Disclosing Party’s Confidential Information to anything third party (other than its legal counsel and accountants) except as expressly permitted herein or as required by law. Receiving Party agrees to use the same degree of care and skill to protect the Disclosing Party’s Confidential Information that it uses to protect the confidentiality of its own Confidential Information.
10.1 Governing Law/Venue. This Agreement will be governed and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to conflict of law rules or principles. In the event that a dispute arises with respect to the terms of this Agreement, Customer agrees that the exclusive and sole venue for the resolution shall be a court in the city of Toronto, Ontario, and further agrees to submit to the jurisdiction of the same.