Platform Participation Agreement (Brand)

Exact Media Network Inc. a corporation with offices at 229 Yonge Street, Suite 305, Toronto, Ontario M5B 1N9, Canada (“Exact Media”) provides the online Platform which you (“Brand”) have accessed for the purpose of accepting on or more Bids in response to a Request for Bid that you submitted on the Platform. These terms (“Agreement”) set out the terms on which Bran may accept Bids on the Platform, and the subsequent obligations of the Brand for distributing marketing materials through third party retailers (“Retailers”).

 

THIS AGREEMENT CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE SUBMITTING A BID.  EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY SUBMITTING A BID THROUGH THE PLATFORM, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.  IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.

1. DEFINITIONS

The following capitalized terms shall have the meanings ascribed to them as follows:

Accepted Bids” means a Bid that has been accepted by the Brand through the Platform, and includes the terms of the applicable Request for Bid;

Bid” means a bid that is submitted by a Retailer through the Platform in response to a Request for Bid, setting out the terms on which that Retailer would carry out the Campaign set out in that Request for Bid, including without limitation the fees to be charged by that Retailer for such Campaign

Campaign” means a particular promotion, project or other initiative launched by Brand and requiring distribution of Materials to Consumers, all as further described in one or more Requests for Bids;

Consumer” means an individual who has placed an order with a Retailer online or offline for products, services and/or services and who falls within the target profile indicated in the Request for Bids for a specific Campaign;

Materials” means coupons, fliers and related marketing materials made available by Brand for distribution to Consumers in a parcel as part of online orders or other deliveries;

Monthly Distribution Letter” means a monthly report submitted by Retailer detailing the Materials distributed in the preceding month in the course of the Campaign;

Platform” means the online platform hosted by Exact Media at [INSERT URL] where Brands can submit Requests for Bids and Retailers can submit Bids;

Request for Bids” means a request for a bid by Brand that is submitted through the Platform which sets out details of the Campaign, including without limitation the Brand’s Materials which it wishes to have distributed, the target profile of the Consumers and distribution terms for such Materials; and

Terms of Use” means the terms of use of the Platform as set out at [exactmedia.io/connecting-brands-retailers/privacy-policy/] and as may be amended by Exact Media from time to time.

2. REQUESTS FOR BIDS, BIDS AND DISTRIBUTION TERMS

2.1 Requests for Bids and Bids. During the Term, and subject to the terms of this Agreement and the Terms of Use, Brand may access the Platform on its own behalf, including in particular for the purpose of :

a) submitting Requests for Bids;

b) accepting Bids through the Platform; and

c) monitoring the performance of Campaigns and particular Retailers.

Brand shall be obliged to complete its obligations in respect of the Campaign set out in an Accepted Bid in accordance with the terms of this Agreement and the Accepted Bid, including without limitation its payment obligations. Brand cannot cancel an Accepted Bid. Unless modified or cancelled by Brand, a Campaign and the terms of an Accepted Bid may only be changed with the mutual agreement of the Parties.

2.2 Campaign Terms. Each Party shall carry out its obligations under this Agreement to ensure that each Campaign is successfully performed in accordance with the applicable Accepted Bid.

2.3 Brand Responsibilities. Brand shall promptly create and arrange for delivery of all Materials to Retailer in accordance any Accepted Order, including without limitation ;

a) Providing all artwork for Materials and submitting such artwork through the Platform for Retailer approval (acknowledging that Retailer may terminate any Campaign if they reject such art work, acting reasonably);

b) Arranging for the printing of all Materials or alternatively agreeing with Exact Media to provide such printing services;

c) Where it has arranged for the printing of Materials, shipping the Materials to the Retailer’s location as set out in any Accepted Bid, and discharging all fees associated with such shipping;

d) Complying with the timeline set out in any Accepted Bid.

Without limiting the foregoing, late shipments of Materials will result in cancellation fee of those units that could not be distributed due to lateness and shall be subject to a 20% cancellation fee of the fees that would otherwise have been charged in respect of such units.

2.4 Exact Media Responsibilities. Exact Media shall use commercially reasonable endeavors to make the Platform available at all times, subject to downtime for maintenance and support issues.

3. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS.

3.1 Mutual Warranties. Each Party represents and warrants to the other Party that: (i) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of such Party; and (ii) during the term of this Agreement, it will maintain at their own expense, all necessary insurance in amounts required by applicable statute to meet such parties obligations and potential liabilities under this Agreement.

3.2 Authority to act. Where this agreement is entered into by an agent on behalf of a third party, Brand warrants and represents that it has the authority to enter into this Agreement on behalf of such third party.

3.3 Non-Circumvention. During the Term of this Agreement, Brand agrees not to approach Retailers directly in connection with a Campaign and will only interact with Exact Media in relation to a Campaign or specific Material enquiries or issues unless otherwise agreed in writing..

4. PAYMENT TERMS

4.1 Exchange Fee. In consideration of the provision of granting Brand access to the Platform, Brand agrees to pay Exact Media the Platform fees as may be set out on the Platform from time to time. Such Platform fees shall only become payable in the event of Brand accepting a Bid on the Platform, and shall be clearly displayed on Platform prior to such action. Payment terms are forty five (45) days from date of invoice.

4.2 Distribution Fees. In consideration of the services provided by Retailer under an Accepted Bid, Brand will pay Exact Media the fees applicable in an Accepted Bid for onward payment to Retailers.  Payment terms are forty five (45) days from date of Retailers submission of each Monthly Distribution Letter through the Platform.  Payment terms will start to run from the date that a Retailer provides the final Monthly Distribution Letter for the last period during the applicable Campaign.

4.3 Cancellation Fees. In the event of cancellation of any Campaign by Brand after accepting a Bid, Brand shall pay 30% of all outstanding fees which would have been payable under such Campaign if not for such cancellation. Brand acknowledges and agrees that such cancellation fee is a fair allocation of loss between the parties.

4.4 Taxes. All fees are exclusive of any applicable taxes, which may also become payable.

 5. INTELLECTUAL PROPERTY AND CONFIDENTIALITY.

5.1 Materials. Brand retains all right, title and interest in and to the Materials provided by it pursuant to this Agreement and all rights are reserved except for express rights granted hereunder to distribute such Materials.

5.2 Trademarks. “Marks” means the trade or service marks, trade names, logos and designations which are owned or licensed by Brand or Exact Media (each a “Owning Party”). Except as contemplated under this Agreement, each Party (“Using Party”) will not use the Owning Party’s Marks for any purpose without the express prior written consent of the Owning Party. Using Party’s use of the Owning Party’s Marks is further conditioned upon Using Party’s compliance with those rules and procedures provided by Owning Party from time to time, including those relating to quality control, relating to the use of Owning Party’s Marks. Using Party will immediately discontinue use and/or remove any placement of any of Owning Party’s Marks upon Owning Party’s request.

6. TERM AND TERMINATION

6.1 Term. The term of this Agreement shall be the term of the Campaign (“Term”) as set out in the Accepted Bid.

6.2 Termination for Cause. Either Party may terminate this Agreement immediately on written notice to the other Party if the other Party: (a) breaches a material term of this Agreement that, if capable of cure, is not cured within ten (10) days of written notice from the other Party; (b) ceases to carry on business as a going concern; or (c) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other Party. Any Insertion Order may be terminated for Erroneous Distribution or if Brand cancels a Campaign.

7. LIABILITY TERMS.

7.1 DISCLAIMER. Brand acknowledges and agrees that Exact Media acts as an intermediary for the distribution of Materials.  Exact Media does not develop, manufacture or have other involvement in the creation of Materials and does not inspect or verify the contents of any Materials provided by Brands.  .  EXACT MEDIA DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE MATERIALS OR ANY OF THE CONTENT THEREOF, WHETHER IN RESPECT OF SUITABILITY FOR THE TARGET AUDIENCE, ACCURACY, COMPLIANCE WITH LAWS OR OTHERWISE.

7.2 Mutual Indemnification. Each Party (the “Indemnifying Party”) shall defend the other Party, its affiliates and their directors, officers and employees (collectively the “Indemnified Parties”) from and against any actions, suits, or proceedings brought against the Indemnified Parties by a third party to the extent arising as a result of: (i) any representations, warranties or other commitments (including any breach thereof) made by the Indemnifying Party on behalf of the Indemnified Party to any third party (including Brands and Consumers) in respect to the carrying out of the Indemnifying Party’s obligations hereunder; (ii) violation of any law or regulation by the Indemnifying Party (including, without limitation, any privacy or personal information protection law or regulation); or (iii) real or tangible property damage or bodily injury or death caused by the negligent or willful acts or omissions of the Indemnifying Party, its employees, subcontractors and agents in connection with this Agreement (collectively any actions, suits, or proceedings falling within (i), (ii) or (iii) hereinafter referred to as a “Claim”) and shall indemnify and hold the Indemnified Parties harmless from and against any damages or costs (including reasonable attorneys’ fees) awarded in to such third party against the Indemnified Parties by a court of competent jurisdiction in respect to any such Claim, subject to the conditions that the Indemnified Parties: (a) promptly give written notice of each Claim to the Indemnifying Party; (b) give the Indemnifying Party sole control of the defense and settlement of each Claim (provided that the Indemnifying Party may not settle or defend any Claim unless it unconditionally releases the Indemnified Parties of all liability); and (c) provide to the Indemnifying Party, at the Indemnifying Party’s cost, all reasonable assistance and co-operation in respect to each Claim.  Notwithstanding (a) of the foregoing, failure by the Indemnified Party to promptly notify the Indemnify Party of a Claim will not relieve the Indemnifying Party of its obligation to indemnify the Indemnified Party unless the Indemnifying Party is materially prejudiced in its ability to defend against the Claim as a result thereof.

7.3 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS)  HOWEVER CAUSED AND, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. GENERAL PROVISIONS

8.1 Relationship of the Parties. The Parties are independent contractors.  Neither Party shall be deemed to be an employee, agent, partner, joint venturer, franchisee or legal representative of the other for any purpose and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other.

8.2 Notices. Any notice, request, demand, consent or other communication provided or permitted hereunder will be in writing and given by courier delivery, or sent by registered mail, postage prepaid to the Parties at the addresses set out below and will be deemed to have been received on the date on which it was delivered or transmitted by facsimile or electronic mail, or on the third (3rd) day next following the mailing thereof to the addresses for each Party indicated on the front page of this Agreement or such other address as a Party may designate in writing from time to time.

8.3 Assignment. Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld).  Notwithstanding the foregoing, each Party may assign this Agreement in its entirety, without consent of the other Party but upon notice, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets.  Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

8.4 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario, and the laws of Canada applicable in Ontario, which will be deemed to be the proper law of this Agreement, without regard to its conflicts of law principles. Any dispute arising from, connected with or relating to this Agreement or any related matters must be resolved before the Courts of Ontario sitting in the City of Toronto, and the Parties hereby irrevocably submit to the original and exclusive jurisdiction of those Courts in respect of any such dispute or matter.

8.5 Logo Usage. Exact Media will not make any public announcement or press release regarding the parties’ business partnership under this Agreement without Brand prior written consent.  However, Exact Media may display Brand Marks on sales materials.  Exact Media will provide the intended context for any new placement of any sales materials to Brand in advance for Brand review and approval.

8.6 Severability. If any provision herein will be deemed or declared unenforceable, invalid or void by a court of competent jurisdiction, the same will not impair any of the other provisions contained herein which will be enforced in accordance with their terms.

8.7 Entire Agreement. The Parties intend that this writing (a) constitute the final and binding expression of their agreement and the complete and exclusive statement of the terms related to the subject matter hereof and (b) supersedes all prior negotiations, representations and agreements related to said subject matter. In the event that there is a separate agreement in place between Exact Media and Brand regarding different subject matters (that is, any relationship outside of Bids submitted through the Platform), such other agreements shall remain in place and shall not be affected by this Agreement.  This Agreement may not be modified except by a written amendment referencing this Agreement and signed by both Exact Media and Brand.  In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of an Accepted Order, the terms of the Accepted Order will govern and take precedence.

8.8 Remedies; Waiver. No failure or delay by a Party to exercise any right, power or privilege provided under this Agreement or by applicable law will operate as a waiver. No single or partial exercise of any such right, power, or privilege will preclude any other or future exercise of any other right, power or privilege. The remedies provided under this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.

8.9 Subcontractors. Each Party shall be entitled to use subcontractors for the performance of its obligations in respect to its applicable obligations without obtaining the other Party’s consent.  If a Party uses subcontractor(s) as permitted above, such Party shall be wholly responsible for the acts and omissions of such subcontractor(s). A Party’s use of subcontractor(s) shall not relieve that Party of any of its duties or obligations under this Agreement, and such Party shall indemnify and hold the other Party harmless from any payment required to be paid to any such subcontractor(s).

8.10 Counterparts. This Agreement may be executed by the Parties in separate counterparts, each of which when so executed and delivered (where delivery may be by facsimile or PDF transmission) will be an original, but all such counterparts will together constitute one and the same instrument.

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