Terms & Conditions
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Definitions & Interpretation
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1.1 The following terms have the following meanings:
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“Advertising” means any mobile billboard, print, or digital advertising to be placed in a Adify mobile billboard, print or digital property as set out in an Insertion Order online or offline.
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“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 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.
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“Customer” means an advertiser or customer who purchases Advertising and/or Marketing Services from Adify through an Insertion Order online or offline.
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“Customer Materials” means any Customer materials, including without limitation, content, photos, videos, graphics, text, logos, designs, trademarks, trade-names, software code, advertising and marketing collateral, or other creative materials, provided by Customer to Adify for the purpose of enabling Adify to fulfill and perform the Advertising and/or Marketing Services.
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“DMS T&Cs” means the terms and conditions specific to the Marketing Services that shall apply where the Insertion Order includes Marketing Services.
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“Duration”means the length of time each of the Advertising and/or Marketing Services will be provided by Adify to Customer as specified in the Insertion Order.
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“Insertion Order” or “IO” means the ordering document (which is provided to Customer as a printed document or an electronic document or may also be provided through Customer’s selection of Advertising and/or Marketing Services directly through the Adify website ordering or pricing page) pursuant to which the Customer purchases the Advertising and/or Marketing Services.
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“Marketing Services” means the marketing services provided by Adify and purchased by Customer as selected in the Insertion Order and as set out and described in the DMS T&Cs.
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“Prohibited Content” means any content that Adify, 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.
1.2 Interpretation. For purposes of this Agreement, all references to “days” will be measured in calendar days unless otherwise noted. A “business day” refers to any day except a Saturday, Sunday or nationally recognized Canadian holiday.
Additional Advertising Conditions
2.1 Links within Digital Advertisements. Any digital advertisement shall link only to the URL specified in this Agreement and shall not offer or promote any products and/or services other than those expressly provided for herein. Additionally, Customer shall consistently update its digital advertisements and shall review, delete, edit, create, update and otherwise manage such content in accordance with the terms of this Agreement.
2.2 Advertising Content. No advertisement shall disparage Adify or promote any product or service which is reasonably competitive with any of Adify's products or services (“Competitive Products“). The Customer shall comply with generally applicable advertising standards and practices, and all other reasonable standards, written policies, as such may be modified by Adify from time to time.
2.3 Objectionable Content. To the extent Adify notifies Customer of reasonable complaints or concerns regarding an advertisement or any other content or materials linked thereto or associated therewith (“Objectionable Content“), Customer shall, to the extent such Objectionable Content is within Customer’s control, use commercially reasonable efforts to respond in good faith to such complaints or concerns. Customer shall take all steps necessary to ensure that any contest, sweepstakes or similar promotion conducted or promoted through an advertisement complies with all Applicable Laws and regulations.
Agency & Permissions
3.1 In the event that Customer requests advertising on behalf of another company (the “Authorizing Company”), Customer agrees on behalf of the Authorizing Company, that the Authorizing Company has been made aware of, and agrees to be bound by, this Agreement and as applicable any relevant third party terms. Customer and the Authorizing Company shall be jointly and severally liable for fulfillment of Customer’s obligations under this Agreement, including all payment obligations. Prior to the purchasing of any advertising on behalf of the Authorizing Company, Customer will provide Adify with any elections and/or consents, executed by a duly authorized representative of the Authorizing Company, relating to the advertising.
Product Specific Conditions
4.1 Commercial Content (“Commercial Content”) is material commissioned by a Customer in accordance with its instructions and subject to its approval.
4.1.1 Review and Approval of Commercial Content. Customer is responsible for reviewing and confirming the accuracy of all Commercial Content prior to publication. By providing its approval, Customer assumes the sole responsibility for any liability arising out of or relating to the Commercial Content, including any material/content that forms the basis of or is included in the Commercial Content. Customer shall indemnify, defend and hold Adify harmless from and against all losses, costs, expenses, liabilities, claims or damages which Adify may suffer or incur in connection with any Commercial Content.
4.1.2 Commercial Content Ownership. All intellectual property rights, including copyright in and to Commercial Content are owned by Adify.
4.1.3 Commercial Content Use. Adify grants Customer a non-exclusive and non-transferable license to use the Commercial Content on and in Customer owned property, including websites and newsletters on condition that: (1) the Commercial Content must not be edited or revised; (2) the Commercial Content must include the following notice: © 20xx[insert year], Adify, Inc.; (3) digital reuse of the Commercial Content must include a content tag, where applicable; and (4) all use by Customer of the Commercial Content shall ensure to the benefit of Adify. Customer must seek the prior written approval of Adify if it wants to reproduce the Commercial Content on or in unrelated third party properties. Adify reserves the right to refuse the use of the Commercial Content on or in third party properties.
Representations, Warranties And Covenants
5.1 Mutual Representations and Warranties. Each party represents, warrants and covenants to the other that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has the full corporate power and authority to enter into and perform the acts required of it under this Agreement; (c) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any law or any other agreement to which it is a party; (d) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered and will be enforceable against such party in accordance with its terms; and (e) each party shall perform their obligations in accordance with all Applicable Laws during the Term of the Agreement.
5.2 Customer Representations and Warranties. Customer represents, warrants and covenants that: (a) the Customer Materials do not and will not: (i) infringe on Adify's or any third party’s copyright, patent, trademark, trade secret, moral right or other proprietary rights or right of publicity or privacy; (ii) violate any Applicable Laws, including, without limitation, any privacy laws, and/or laws and regulations governing, false advertising or unfair competition; (iii) contain any Prohibited Content or otherwise contain any defamatory material; or (iv) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines; (b) the product or service that is being (or will be) promoted through the Advertising and/or Marketing Services is lawful and not the subject of any ongoing investigation by any local, provincial or federal regulatory or quasi-regulatory authorities; and (c) it has obtained all consents and permissions required to provide Adify with any Personal Information and to use the Personal Information in connection with the Advertising and/or Marketing Services (if so required).
Limitations Of Liability
6.1 CUSTOMER IS SOLELY RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF OR RELATING TO: (I) ANY CUSTOMER MATERIALS SUPPLIED BY CUSTOMER FOR INCLUSION IN THE ADVERTISING AND/OR MARKETING SERVICES; AND (II) ANY MATERIAL TO WHICH USERS CAN LINK TO THROUGH THE CUSTOMER MATERIAL SUCH MATERIAL INCLUDING WITHOUT LIMITATION ANY THIRD PARTY CONTENT CONTAINED THEREIN (“LINKED CONTENT”).
6.2 Timing of Claims.Customer agrees that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
6.3 Each party acknowledges that the other party has entered into this Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
General
7.1 Applicable Laws. Each party shall, in the performance of this Agreement, fully comply with, and abide by, all laws, regulations, regulatory rulings or directives, codes of practice, court orders, and decisions of administrative tribunals of competent jurisdiction, that may, in any manner or extent, concern, govern, or affect either party’s respective performance of, and obligations under, this Agreement, including without limitation, the Privacy Laws (collectively, “Applicable Laws”).
7.2 Amendments. Except as otherwise expressly set out in this Agreement, no amendment to this Agreement will be binding unless mutually agreed upon by the parties and set out in writing, duly signed by each party.
7.3 Notices. Unless otherwise specified in this Agreement, any written notice required to be given by one party to any other party under this Agreement shall be effective upon delivery as follows: (a) if to Customer, (i) when delivered by registered mail with proof of delivery or by nationally recognized courier, signature required, to the Customer’s address specified in an Insertion Order; or (ii) when sent via email to the email address specified in the Insertion Order or otherwise on record for Customer; and (b) if to Adify, (i) when delivered by registered mail with proof of delivery or by nationally recognized courier, signature required, to Adify's then current corporate headquarters address (as shown on www.adify.ca), Attn: General Counsel with a copy sent by email to team@adify.ca.
7.4 Severability; Non-Waiver.If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon or enforce strict performance of any of the provisions of this Agreement, or to exercise any rights or remedies under this Agreement, will not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision, right or remedy in that or any other instance; rather the same will remain in full force and effect.
7.5 Assignment. Customer may not assign this Agreement without the prior written consent of Adify. Adify may assign this Agreement in whole or in part in its sole discretion. The parties’ rights and obligations will bind and inure to the benefit of their respective successors, heirs, executors and joint administrators and permitted assigns.
7.6 Independent Contractors.The parties to this Agreement are independent contractors, and no agency (except as expressly set forth in Section 8), partnership, joint venture or employee-employer relationship is intended or created by this Agreement.
7.7 Force Majeure. Neither party shall have any liability for any failure or delay (other than with respect to payment obligations) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown, internet disruptions, denial of service attacks, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
7.8 Survival. All provisions of this Agreement that by their sense or nature should survive termination or expiry of this Agreement (including, without limitation, all payment, limits of liability, indemnity obligations, privacy and confidentiality obligations) shall so survive. Without limiting the generality of the foregoing, in the event of any termination, Customer shall remain liable for any Fees or other payments due to Adify as of the effective date of termination.
7.9 French Language. In the event of any inconsistency between the English and French versions of this Agreement (including without limitation, the terms and conditions and the Insertion Order and any appendices or schedules thereto) the English version shall govern.
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