1. AGREEMENT
Services provided by Postmedia and purchased by the Customer are included in this Sales Agreement.
The signatory of this Sales Agreement shall be defined as the “Customer”.
If digital or print advertising is ordered, Customer agrees to comply with the advertising conditions (“Advertising Conditions”) below that detail Postmedia’s requirements regarding the submission and approval of advertising materials (the “Customer Materials”) as specified in this Sales Agreement. Customer Materials may include without limitation, content, photos, videos, graphics, text, logos, designs, trademarks, trade-names, software code, advertising, marketing collateral, etc.
If Digital Marketing Services are ordered please refer to the DMS terms & conditions available at https://www.postmediasolutions.com/dms-terms-conditions/. “Digital Marketing Services” are all digital marketing or advertising services other than advertising on Postmedia’s owned and operated network.
This Sales 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.
2. TERM AND TERMINATION
2.1 Term. This Sales Agreement becomes effective on the date of the last signature on this Agreement (the “Effective Date”) and, subject to earlier termination in accordance with the terms of this Agreement, shall continue until the latest date as stated in this Sales Agreement above (the “Term”),
2.2 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 Sales Agreement and such breach has not been cured by the conclusion of the Notice Period. No other means of termination by Customer will be valid, unless otherwise expressly specified in a sales agreement.
2.3 Termination or Suspension by Postmedia. Postmedia may terminate this Sales Agreement, without liability: (a) for convenience upon thirty (30) days’ notice; (b) immediately, if Customer fails to pay its Fees as they become due on two (2) or more occasions during the Term; (c) immediately in the event of a breach by Customer of any applicable laws including, without limitation, privacy laws and CASL; or (d) if the Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
2.4 Early Termination Payments. If Postmedia terminates this Sales Agreement for any reason, all unpaid Fees set forth in each Sales Agreement 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 Postmedia as a result of early termination of services.
2.5 No Refunds. In addition to the foregoing, if Postmedia suspends or terminates this Sales Agreement or takes down any advertisement already published or posted, 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 Postmedia for the period prior to the effective date of termination. Notwithstanding the foregoing, if Customer terminates this Sales Agreement pursuant to a breach by Postmedia (section 2.2), 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.
2.6 Submission of Customer Materials. Failure by Customer to submit the Customer Materials within the applicable deadlines shall relieve Postmedia from any obligation with respect to such advertisement and Postmedia shall have the right, but not the obligation, to run a public service announcement ad in lieu of Customer’s advertisement and to charge Customer for the fees related to such advertisement.
3. FEES AND PAYMENTS
3.1 General. Once a sales agreement has been accepted by Postmedia, Customer shall be responsible for payment of all fees (“Fees”) 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 Digital Marketing Services. Customer agrees to pay all Taxes when due, which Postmedia shall detail in the applicable invoice.
3.2 Payment Terms. If Postmedia elects, in its sole discretion, to extend credit terms to Customer, then Postmedia shall invoice Customer for Fees and applicable taxes on a monthly basis and shall process payments directly on Customer’s authorized credit card within 10 days following the end of the month (other forms of payment accepted are Electronic Funds Transfer, Wire Payment and E-transfer). In such event, this contract shall become effective only when credit has been confirmed. In all other instances, the Fees and applicable Taxes will be due in advance of any advertising executions. Failure to pay any amounts owing when due, including without limitation, as a result of a credit card denial, will constitute a breach by Customer under this Sales Agreement. Upon the occurrence of any such breach, Postmedia may, at its option, declare all payments immediately due and payable in accordance with Section 2.4 hereof.
3.3 Overdue Amounts. All overdue Fees shall be subject to interest at a rate of two percent (2%) per month (being 23.39% 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 Postmedia in collecting overdue payments due under this Sales Agreement.
3.4 Overage Fees. Vendors and other third parties may, from time to time, charge overage fees for plug-ins and other hosting services. They may also, from time to time, change such overage fees. Postmedia is not responsible for rendering payment for such overage fees, nor is Postmedia responsible for notifying the customer of such fees when they become due.
4. TRADEMARK LICENSE
Customer hereby grants to Postmedia 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 Postmedia to publish any advertisements and/or perform the Marketing Services contemplated by this Sales Agreement. All title to and ownership of all Customer Materials shall remain with Customer or its third party licensors. In addition, Customer agrees that Postmedia 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 Postmedia’s own print, digital, video and website marketing, promotion and advertising campaigns for Postmedia’s own products .
5. TAKE DOWN RIGHTS
Postmedia shall have the right to remove any advertisements that it believes, in its sole discretion, includes Prohibited Content.
“Prohibited Content” means any content that the Postmedia, acting reasonably, determines: (i) is pornographic or contains sexually explicit content (including nudity) or offensive subject matter or contains a link to an adult website; (ii) contains graphic or gratuitous violence; (iii) conveys a message of hate against any individual or group based upon their race, religion, age, gender, nationality, sexual orientation or language; (iv) is predatory in nature, or is submitted for the purpose of harassment or bullying; (v) constitutes or promotes information that Customer knows is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (vi) furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; or (vii) violates or attempts to violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person; or is otherwise in violation of any law or regulation.
6. INDEMNIFICATION
6.1 Customer Indemnity. Customer will indemnify, defend and hold harmless Postmedia 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 approved by Customer including, but not limited to, allegations that such advertisements, Customer Materials or other subject matter are defamatory or obscene; (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, regulations or other judicial or administrative action, including without limitation, any privacy laws; and (f) any willful, intentional or negligent act, omission or misrepresentation by Customer.
6.2 Control of Litigation. Notwithstanding Customer’s obligation to defend and indemnify Postmedia, Postmedia 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 Postmedia does assume the defense of such a matter, Customer will reasonably cooperate with Postmedia 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 Postmedia’s prior written consent.
7. DISCLAIMER OF WARRANTIES
POSTMEDIA PROVIDES ADVERTISING AND ALL MARKETING SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND, EITHER EXPRESS 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 WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS SALES AGREEMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS ITS RESPONSIBILITY TO REVIEW ALL ADVERTISING COPY, INCLUDING THAT PRODUCED BY POSTMEDIA, FOR ACCURACY AND COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS.
8. LIMITATIONS OF LIABILITY
8.1 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 SALES AGREEMENT. THE FOREGOING EXCLUSION OF LIABILITY WILL NOT APPLY TO (I) CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER; (II) CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER; (III) CUSTOMER’S CONFIDENTIALITY AND PRIVACY OBLIGATIONS HEREUNDER; AND (IV) CUSTOMER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
8.2 WITHOUT LIMITING GENERALITY OF SECTION 8.1, POSTMEDIA 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 UNDER NO CIRCUMSTANCES SHALL POSTMEDIA’S CUMULATIVE, AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY EXCEED THE AMOUNT PAID BY CUSTOMER TO POSTMEDIA UNDER THIS SALES AGREEMENT IN THE 12 MONTHS’ PRECEDING THE CLAIM.
9. CONFIDENTIALITY AND PRIVACY CONSIDERATIONS
9.1 “Confidential Information” means information about a party’s business, products, technologies, strategies, financial information, operations or activities that is proprietary and confidential, including, without limitation, the contents of this Sales Agreement and all business, financial, sales, technical and any other information which, from all the relevant circumstances, should reasonably be assumed to be confidential and proprietary. Confidential Information will not include information that is: (a) in the possession of the Receiving Party free of any obligation of confidentiality at the time of its disclosure; (b) becomes publicly known other than by a breach of this provision; (c) received without restriction from a non-party free to disclose it; or (d) developed independently by the Receiving Party without reference to the Confidential Information.
9.2 Confidentiality. By virtue of this Sales 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 any 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.
9.3 Compliance with Privacy Laws. Customer agrees that it shall comply at all times with all applicable Canadian privacy legislation and guidelines, including without limitation, the Personal Information Protection and Electronic Documents Act (Canada) (“PIPEDA”) and the Canadian Anti-Spam legislation commonly referred to as “CASL” (collectively, the “Privacy Laws”). Without limiting the generality of the foregoing, Customer agrees that it is solely responsible for obtaining all required consents (“Consents”) necessary for the collection, use and/or disclosure of any Personal Information and the sending of Commercial Electronic Messages (as the same is defined in CASL): (i) that it provides to Postmedia to enable Postmedia to perform the advertising and/or Marketing Services; and/or (ii) that is generated through the Marketing Services. Additionally, Customer agrees that it shall only collect, use and disclose Personal Information in accordance with the terms of the Consents, the Customer’s privacy policy, and all Privacy Laws.
10. GOVERNING LAW
This Sales 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 Sales 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.