Platform Participation Agreement (Retailer)

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 (“Retailer”) have accessed for the purpose of submitting a Bid. These terms (“Agreement”) set out the terms on which Retailer may submit Bids on the Platform, and the subsequent obligations of the Retailer for distributing marketing materials from third party providers (“Brands”) by Retailer if that Bid is accepted.

 

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 a Brand through the Platform, and includes the terms of the applicable Request for Bid;

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

Campaign” means a particular promotion, project or other initiative launched by a 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 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;

Request for Bids” means a request for a bid by a 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;

Materials” means coupons, fliers and related marketing materials made available by a 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 and other retailers can submit Bids; 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. Subject to the terms of this Agreement and the Terms of Use:

a) Retailer may access the Platform on its own behalf for the purpose of reviewing Requests for Bids and submitting Bids through the Platform; and

b) Retailer may submit Bids for the delivery of Materials for a specific Campaign in response to Request for Bids.

Where a Bid is accepted by Brand, Retailer shall be informed of such Accepted Bid through the Platform. Retailer shall be obliged to deliver the Campaign set out in an Accepted Bid in accordance with the terms of this Agreement and the Accepted Bid. Retailer cannot cancel a Bid after it has become an Accepted Bid. Unless modified or cancelled by a 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.

a) General. 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.

b) Surveys, Feedback and Contests. Retailer acknowledges that it may be a requirement of Brands that Exact Media obtain feedback on a specific Campaign from Consumers via a survey. Unless otherwise agreed between the parties, the survey will be hosted and managed by Exact Media or the Brand, with the link displayed on the Materials. In some cases, feedback for the Brand may include an invitation to participate in a contest to incentivize the Consumer to respond.

c) Responsibility for Materials. All risk of loss, damage or destruction of Materials will be borne by Retailer from the time that Retailer receives the Materials until the time that Materials are distributed. Retailer shall shred all unused Materials at the end of a Campaign. Retailer will not be held liable for any damages to samples once the samples have left Retailer warehouse facilities.

2.3 Quality Assurance Rights. Exact Media, Brands and/or their agents monitor may compliance with the terms of this Agreement by submitting orders to Retailer within the target market of a Campaign. In the event that Exact Media believes in its sole discretion that Retailer is not complying with its obligations under this Agreement then, without limiting any other right of Exact Media under this Agreement, Retailer may be prevented from submitting any further Bids through the Platform.
2.4 Retailer Responsibilities. Retailer shall:

a) Verify shipping addresses within 5 business days of Brand accepting Bid;

b) Promptly approve any creative element of Materials submitted by Brand, such approval not to be unreasonably withheld;

c) promptly confirm receipt of Materials or notify Exact Media if the Materials have not arrived by the expected arrival date;

d) comply fully with the terms of the applicable Accepted Bid including but not limited to ensuring that only targeted Consumers are sent Materials and meeting the targeting requirement as set out in the Accepted Bid;

e) ensure one (1) copy of the Materials is delivered per delivery package or parcel to applicable Consumers;

f) within 5 days of the end of each month during a Campaign and at the end of the Campaign, complete and return to Exact Media a copy of the Monthly Distribution Letter; and

g) be responsible for completing the Campaign in the timelines established, otherwise Retailer shall be responsible for the printing and destruction cost for the Materials that could not be distributed.

2.5 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 Non-Circumvention. During the Term of this Agreement, Retailer agrees not to approach Brands directly in connection with a Campaign other than through the Platform and will only interact through the Platform in relation to a Campaign or specific Sample enquiries or issues unless otherwise agreed in writing. Retailer will not solicit or accept any paper insert distribution business from any Brand which has first been made available to Retailer through an introduction to that Brand by Exact Media. Failure to comply with this section may result in Retailer being prevented from submitting any further Bid through the Platform.

4. PAYMENT TERMS

4.1 Fees. In consideration of the distribution services under an Accepted Bid, Exact Media will pay Retailer the fees applicable in an Accepted Bid.  Unless different payment terms are expressly stated on the Accepted Bid, payment terms are sixty (60) days from submission by Retailer of Monthly Distribution Letter. Brand shall be invoiced on receipt of the Monthly Distribution Letter.  The Monthly Distribution Letter must be submitted no later than 5 Business Days after a calendar month is completed for the duration of a campaign.   Exact Media reserves the right to reduce applicable fees at a rate of 5% per delinquent month in the case of any delay in provision of the Monthly Distribution Letter.   Fees are exclusive of taxes.

5. INTELLECTUAL PROPERTY AND CONFIDENTIALITY.
5.1 Materials. Brands retain all right, title and interest in and to the Materials provided by them 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 Retailer 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 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. Retailer may terminate this Agreement if it has a reasonable concern that the creative elements of any Materials may adversely affect its good name, brand or image.

6.3 Late Shipments and Cancellation by Brand. In the event of late shipments of Materials by Brand of units that could not be distributed due to lateness, Retailer shall be entitled to 20% of the fees that would otherwise have been charged in respect of such units. This shall be Retailer’s sole remedy in such circumstance. In the event of cancellation of any Campaign by Brand after accepting a Bid, Retailer shall be paid 30% of all outstanding fees which would have been payable under such Campaign if not for such cancellation. This shall be Retailer’s sole remedy in such circumstance.

7. LIABILITY TERMS.

7.1 DISCLAIMER. Retailer 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 may display Retailer Marks on sales materials, on the Platform and in marketing materials promoting the Platform.

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 Retailer 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 Retailer.  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 Updates to Agreement. Company reserves the right to modify this Agreement at any time by publishing the revised Agreement on the Website and/or providing a copy of this Agreement to your account by email. The revised Agreement shall become effective within ten (10) business days of such publication or provision to You, unless You expressly accept the revised Agreement earlier by clicking on the accept button. Your express acceptance or Your continued use of the Services after expiry of the notice period of ten (10) business days (being weekdays excluding any statutory holidays in Ontario), shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.

 

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