Marketing Service Agreement Terms
Marketing Services Agreement
This Marketing Services Agreement (the “Agreement”) is by and between between Local Leader Inc, having its principal place of business at Suite 320 – 171 East Liberty St. Toronto, Ontario, M6K 3P6 and email at email@example.com (“Local Leader”) and the Advertiser identified on the Initial Accepted Insertion Order (Local Leader and Advertiser, the “Parties” and each a “Party”). This Agreement becomes effective on the date the Initial Accepted Insertion Order is signed by the last party to sign it (as indicated by the date associated with that party’s signature) (the “Effective Date”).
The Parties agree as follows:
1.1 Definitions. Capitalized terms not otherwise defined in the Agreement have the meanings set out in this Section.
(a) “Accepted Insertion Order” means an Insertion Order delivered to Local Leader by Advertiser and accepted by Local Leader in accordance with the terms of this Agreement.
(b) “Ad Campaign” means any sustained Advertisement or coordinated series of Advertisements over the period specified in the ordering grid contained in an Accepted Insertion Order.
(c) “Ad Space” means the space in Local Leader’s Channels that Local Leader sells to Advertiser or a third party to advertise its products or services.
(d) “Advertisement” means any advertisement that Advertiser delivers to Local Leader or that is deemed delivered to Local Leader pursuant to Section 2.2(c).
(e) “Advertiser Materials” means any content or materials provided to Local Leader by Advertiser, including any Advertisement.
(f) “Amendment Notice” has the meaning provided in Section 12.8 (Amendment an Modification).
(g) “Artwork” means any images or still visual components of an Advertisement.
(h) “Audio” means any audio components of an Advertisement.
(i) “Channels” means the Local Leader online channels through which the Advertisements are to be displayed pursuant to an Accepted Insertion Order (for example, Local Leader’s website, newsletter, emails to Local Leader’s mailing list, or YouTube channel).
(j) “Clicks” means the number of times an Internet user clicks on a hyper-link in an Advertisement.
(k) “Content Creation Services” has the meaning provided in Section 2.2(a).
(l) “Copy” means the printed text of an Advertisement.
(m) “Creative Components” means the Copy, Artwork, Audio, Video, and Layout.
(n) “Editorial Content” means all content of the Channels, excluding any advertisements.
(o) “Impression” means the number of times a page, frame, or other space of a Channel specified in an Accepted Insertion Order, containing an Advertisement, is downloaded by an Internet user, regardless of whether or not the user waits long enough to view the whole Advertisement.
(p) “Initial Accepted Insertion Order” means the first Accepted Insertion Order.
(q) “Insertion Order” means a written order from Advertiser to Local Leader for the purchase of Ad Space or Content Creation Services, in the form attached hereto as Exhibit A.
(r) “Intellectual Property” means any and all Trademarks, original works of authorship and related copyrights, and any other intangible property in which any party holds proprietary rights, title, interests, or protections, however arising, pursuant to the Laws of any jurisdiction throughout the world, including all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.
(s) “Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, order, injunction, judgment, determination, or other requirement or rule of law of any governmental authority.
(t) “Layout” means the size and placement of Copy and Artwork within the Advertisement and in the Channel, including margins, backgrounds, fonts, and colors.
(u) “Page Views” means the number of times the entire Advertisement is displayed in whole to an Internet user.
(v) “Person” means an individual, corporation, partnership, joint venture, unlimited liability company, governmental authority, unincorporated organization, trust, association or other entity.
(w) “Local Leader Policies” means all policies of Local Leader regarding advertisements to be published in the Ad Space, including Specifications, Submission Deadlines, content restrictions, and privacy policies, as may be implemented or amended by Local Leader from time to time.
(x) “Representatives” means a Party’s employees, officers, directors, partners, shareholders, agents, lawyers, third-party advisors, successors, and permitted assigns.
(y) “Services” means the services to be provided by Local Leader under this Agreement, as described in more detail in each Accepted Insertion Order.
(z) “Specifications” means the technical specifications of Local Leader for all advertisements to be published in the Ad Space.
(aa) “Submission Deadline” means any date by which Local Leader requires Creative Components, final versions of Advertisements, or any other materials or information from Advertiser to publish an Advertisement in the Ad Space agreed in the corresponding Accepted Insertion Order.
(bb) “Trademarks” means all rights in and to trademarks, service marks, trade dress, trade names, brand names, logos, corporate names, and domain names, and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
(cc) “Video” means any video components of an Advertisement.
1.2 Interpretation. For the purposes of this Agreement: (a) the words “include,” “includes” and “including” will be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein; (d) Section, Schedule, and Exhibit headings do not affect the interpretation of this Agreement; (e) words in the singular include the plural and those in the plural include the singular; and (f) a reference to “writing” or “written” includes email, unless otherwise stated.
2.1 Purchase and Sale of Ad Space. Subject to the terms and conditions of this Agreement, during the Term, Local Leader may sell to Advertiser, and Advertiser may purchase from Local Leader, Ad Space pursuant to the terms of an Accepted Insertion Order and this Agreement. Advertiser may purchase Ad Space for individual Advertisements as well as for Ad Campaigns. Advertisements will be displayed in the Ad Spaces specified in the corresponding Accepted Insertion Order at the times and frequencies, and for the periods, specified in the corresponding Accepted Insertion Order. Subject to the terms of any Accepted Insertion Order, Local Leader is not obligated to sell any minimum quantity of Ad Space to Advertiser and Advertiser is not obligated to purchase any minimum quantity of Ad Space from Local Leader. At the end of an Advertising Campaign, Local Leader may remove from the Ad Space all Advertisements that correspond with that Advertising Campaign.
2.2 Content Creation Services.
(a) Content Deliverables. Subject to the terms and conditions of this Agreement, if ordered by Advertiser in Accepted Insertion Order, Local Leader shall design and prepare creative content for use in Advertisements (“Content Deliverables”) in accordance with the content specifications (the “Content Specifications”) set forth in such Accepted Insertion Order (the “Content Creation Services”).
(b) Acceptance of Content Deliverables. Each Content Deliverable will be considered accepted (“Acceptance” or “Accepted”) (i) when Advertiser provides Local Leader written notice of acceptance or (ii) 10 business days after delivery, if Advertiser has not first given Local Leader written notice of rejection. Advertiser may reject any Content Deliverable only if it materially deviates from its Content Specifications and only via written notice setting forth the nature of such deviation.
(c) Deemed Delivery. If Advertiser requests to use or display any Accepted Content Deliverable (or component thereof) in any Ad Space or otherwise does use or display any Accepted Content Deliverable (or component thereof) in any Ad Space or otherwise in connection with any advertising services provided by Local Leader, such Accepted Content Deliverable (or component thereof) will be deemed delivered to Local Leader by Advertiser for the purposes of the definition of Advertisement.
2.3 Reporting. If agreed to in an Accepted Insertion Order, Local Leader shall use commercially reasonable efforts to provide Advertiser, on the frequency specified in the Accepted Insertion Order, statistics regarding the performance of the Advertisements in the Channels (the “Reports”). The Parties recognize and acknowledge, however, that the characteristics of the Internet, including caching or site mirroring by third parties, may impede Local Leader’s ability to gather complete and accurate performance information regarding the Advertisements. Local Leader will make commercially reasonable efforts to ensure the accuracy of any Reports but will have no liability to Advertiser or any other Person for any inaccuracy, error, or omission contained in any Report. The Reports will be the confidential information of both Parties under Section 10 and each Party may use the Reports solely for its internal business purposes.
2.4 Non-Exclusivity. Nothing in this Agreement creates an exclusive arrangement between Advertiser and Local Leader. This Agreement will not restrict (a) Advertiser from advertising in other publications or media, or (b) Local Leader from selling Ad Space to any third parties.
2.5 Submission of Insertion Orders. Advertiser shall initiate all orders for Ad Space or Content Creation Services by delivering to Local Leader an Insertion Order via email using the form Insertion Order attached as Exhibit A. Each Insertion Order must be substantially in the form attached as Exhibit A. Advertiser’s delivery of an Insertion Order to Local Leader constitutes an offer to purchase Ad Space or Content Creation Services (as applicable) pursuant to the terms and conditions of this Agreement.
2.6 Acceptance or Rejection of Insertion Orders.
(a) Local Leader may accept or reject any Insertion Order.
(b) To accept an Insertion Order, Local Leader shall confirm the order in writing to Advertiser by delivering written confirmation of acceptance via a countersigned Insertion Order.
(c) No Insertion Order is binding on the Parties unless accepted by Local Leader in accordance with Section 2.6(b).
2.7 Terms of Agreement Prevail over Insertion Orders. In the event of any conflict between the terms of this Agreement and the terms of any Accepted Insertion Order, the terms and provisions of this Agreement will control unless an Accepted Insertion Order expressly overrules a specified section of this Agreement in which case the exception applies solely to that Accepted Insertion Order.
2.8 Advertiser Obligations. Advertiser Shall:
(a) respond promptly to any Local Leader request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Local Leader to perform Services in accordance with the requirements of this Agreement;
(b) provide in a timely manner such Advertiser Materials as Local Leader may request to carry out the Services and shall ensure that such Advertiser Materials are complete and accurate in all material respects; and
(c) by no later than the Submission Deadline specified by Local Leader, deliver to Local Leader all Creative Components, final versions of Advertisements, or any other materials or information reasonably required by Local Leader to publish an Advertisement in the Ad Space.
2.9 Delays Caused by Advertiser. If Local Leader’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Advertiser, Local Leader will not be deemed in breach of its obligations under this Agreement or otherwise liable for any losses sustained or incurred by the Advertiser, in each case, to the extent arising directly or indirectly from such prevention or delay. If publication of an Advertisement in Ad Space is delayed by any act or omission of Advertiser, Advertiser will not be entitled to a refund for any reduction in the duration of the display of such Advertisement in the Ad Space.
2.11 Subcontracting. Local Leader may subcontract its obligations under this Agreement to any Person.
3. FEES AND PAYMENT
3.1 Fees. Advertiser shall pay Local Leader the fees set forth in the applicable Accepted Insertion Order. Local Leader’s calculation of fees owed by Advertiser for Services is final except in the case of manifest demonstrable error.
3.2 Taxes. All fees are exclusive of all goods and services, harmonized sale, sales, service, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Advertiser under this Agreement. Advertiser shall be responsible for all such charges, costs, and taxes.
3.3 Payment. Pre-payment of fees may be required at Local Leader’s discretion. Subject to the terms of an Accepted Insertion Order, Advertiser shall pay all invoiced amounts due to Local Leader no later than 30 days after the delivery of such invoice.
3.4 Invoice Disputes. Advertiser shall notify Local Leader in writing of any dispute with an invoice (along with a reasonably detailed description of the dispute) no later than 14 days after the date of such invoice. Advertiser will be deemed to have accepted all invoices for which Local Leader does not receive timely notification of disputes and shall pay all undisputed amounts due under such invoices within the period set forth in Section 3.3 (Payment). The Parties shall seek to resolve all such disputes expeditiously and in good faith.
3.5 Late Payments. Except for invoiced payments that Advertiser has successfully disputed, Advertiser shall pay interest on all late payments, calculated daily and compounded monthly, at the lesser of the rate of 24% per annum, calculated daily and compounded monthly (effective rate of 26.824% per annum) or the highest rate permissible under applicable Law. Advertiser shall also reimburse Local Leader for all costs reasonably incurred in collecting any late payments, including legal fees, disbursements and charges. In addition to all other remedies available under this Agreement or at Law (which Local Leader does not waive by the exercise of any rights under this Agreement), Local Leader may, if Advertiser fails to pay any undisputed amounts when due under this Agreement:
(a) suspend the delivery of any Services, including the publication of any Advertisements on any Ad Space; and
(b) terminate this Agreement in accordance with Section 11.2(a)(i).
3.6 Refunds. All payments made by Advertiser to Local Leader are non-refundable, except as provided in Section 11.4(e).
4. ADVERTISEMENT REQUIREMENTS
4.1 Delivery and Marking.
(a) Advertiser shall deliver all Advertisements to Local Leader in final format in accordance with Local Leader’s Specifications. Local Leader is not responsible for making any corrections to Advertisements.
(b) Advertiser shall ensure that any Advertisements that might be mistaken for Editorial Content is clearly marked “advertisement” or similar language. Local Leader may mark, or require Advertiser to mark, any Advertisement as advertising to avoid confusion with Editorial Content.
4.2 Compliance with Laws. Advertiser shall ensure that all of its Advertisements comply with all applicable Laws, including the Competition Act (Canada) and all Laws regarding deceptive trade practices, misleading advertisements, fair competition, and consumer protection.
4.3 Clearances. Advertiser shall be responsible for obtaining all rights, licences, permissions, releases, approvals, clearances, and credit or attribution information, and for payment of all royalties, license, or reuse or other fees required for Advertiser to create any Advertisement and grant Local Leader the right to reproduce, display, and distribute it in the Ad Space.
4.4 Local Leader Policies and Approval.
(a) All Creative Components and Advertisements must conform to the then-current Local Leader Policies.
(b) Local Leader may reject any Advertisement regardless of whether such Advertisement was previously accepted which, in its sole discretion, it determines (i) does not comply with any Local Leader Policy, (ii) is offensive, obscene, or profane, (iii) is defamatory, libelous, slanderous, otherwise infringes on a third party right, or does not otherwise comply with applicable Law, (iv) is false or misleading, or (v) claims endorsement in any way by Local Leader of any products or services.
(c) Local Leader shall notify Advertiser as soon as reasonably possible of any objection to any Advertisement or any Creative Component therein. Local Leader may, in its sole discretion:
(i) provide Advertiser with the opportunity to amend or replace a rejected Advertisement, on the condition that Advertiser meets any and all applicable Submission Deadlines and Local Leader’s overall publication schedule,
(ii) allow Advertiser to substitute a previously run ad having the same dimensions, or
(iii) run a public service announcement or house advertising in place of any rejected Advertisement.
(d) The Advertiser shall be entitled to make editorial or format modifications to the Advertisement, provided that the modifications do not materially change the appearance of the Advertisement.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Accepted Content Deliverables. This Section 5.1 is subject to Section 5.2 (Independent Assets). Advertiser is and will be the sole and exclusive owner of all right, title, and interest throughout the world in and to all Accepted Content Deliverables, including all intellectual property rights therein. Local Leader hereby irrevocably assigns and agrees to assign to Advertiser all rights, title, and interest throughout the world in and to the Accepted Content Deliverables, including all intellectual property rights therein. Local Leader hereby irrevocably and unconditionally waives and agrees to waive all moral rights that Local Leader may now have or may in the future have relating to the Accepted Content Deliverables.
5.2 Independent Assets.
(a) Section 5.1 (Accepted Content Deliverables) does not apply to any component of the Accepted Content Deliverables created before the Effective Date or otherwise independent of this Agreement (collectively, the “Independent Assets”).
(b) To the extent that this Section 5.1 (Accepted Content Deliverables) does not provide Advertiser with full ownership, right, title, and interest in and to the Accepted Content Deliverables, including Independent Assets, Local Leader hereby grants Advertiser a perpetual, irrevocable, fully paid, royalty-free, worldwide license to reproduce, create derivative works from, distribute, publicly display, publicly perform, and use the Independent Assets solely as components of the Accepted Content Deliverables with the right to sublicense each and every such right. For clarity, Advertiser may not: (i) reproduce, distribute, or use Independent Assets other than as components of the Accepted Content Deliverables, or (ii) sublicense any rights in Independent Assets to third parties other than as components of the Accepted Content Deliverables.
5.3 Advertiser Materials. As between the Parties, Advertiser is and will remain the sole and exclusive owner of all right, title and interest in and to the Advertiser Materials, including all intellectual property rights therein, subject only to the license granted under Section 6.2 (Advertiser Materials License).
5.4 Channels and Local Leader Materials. As between the Parties, Local Leader and its licensors (as applicable) are and will remain the sole and exclusive owners of all right, title and interest in and to the Channels and in all materials Local Leader provides to Advertiser other than Accepted Content Deliverables, including all intellectual property rights therein.
5.5 Usage Data. As between Local Leader and Advertiser, all intellectual property rights in or to the usage data collected from the Channels, including in relation to any Advertisements on the Channels, belong to Local Leader.
6. LOCAL LEADER’S LICENSE.
6.1 Advertisement License. Subject to the terms and conditions of this Agreement, Advertiser grants Local Leader a perpetual, royalty-free, non-exclusive, non-transferable, and non-sublicensable (except as provided in Section 6.3) license to reproduce, transmit, publish, publicly display, publicly perform, and distribute each Advertisement, including all of Advertiser’s Intellectual Property contained therein: (a) in or through the Ad Space in accordance with the terms of this Agreement and the corresponding Accepted Insertion Order; and (b) as otherwise necessary or convenient for Local Leader to provide the Services. Additionally, Local Leader may modify and adapt each Advertisement as necessary or convenient for Local Leader to exercise the foregoing rights.
6.2 Advertiser Materials License. Advertiser hereby grants to Developer a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify and create derivative works and improvements of the Advertiser Materials solely to create and contribute to the Content Deliverables and otherwise as necessary or convenient for Local Leader’s performance of the Services. The term of such license will commence upon Advertiser’s first delivery of Advertiser Materials to Local Leader and will continue perpetually.
6.3 Right to Sublicense. To the extent necessary for Local Leader to perform its obligations and exercise its rights under this Agreement, Local Leader may sublicense its rights under Section 6.1 to its service providers, subcontractors, and distribution partners.
7. REPRESENTATIONS, WARRANTIES, AND CERTAIN COVENANTS
7.1 Mutual Representations, Warranties, and Covenants. Each Party represents, warrants, and covenants to the other that:
(a) if it is a corporation, it is a corporation duly organized and validly existing in the jurisdiction of its incorporation;
(b) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end hereof and the delivery of this Agreement by the Party have been duly authorized by all necessary action of the Party;
(d) this Agreement has been executed and delivered by the Party and (assuming due authorization, execution, and delivery by the other Party) constitutes the legal, valid, and binding obligation of the Party, enforceable against the Party in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, or similar laws and equitable principles related to or affecting creditors’ rights generally or the effect of general principles of equity
7.2 Advertiser Representations, Warranties, and Covenants. Advertiser represents, warrants, and covenants to Local Leader that:
(a) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement;
(b) at the time of the Advertisement’s publication and dissemination, any statement, claim, or representation made in any Advertisement (i) will be supported by competent and reliable prior substantiation in accordance with all applicable Laws, including the Competition Act, and (ii) shall comply with all applicable Laws, including regarding deceptive trade practices, misleading advertising, fair competition, and consumer protection;
(c) nothing in any Advertisement or Creative Component will (i) violate any Law, (ii) advocate any illegal activity, or (iii) be defamatory or violate or infringe any third-party right;
(d) Advertiser has and will retain all rights, licenses, and clearances necessary to lawfully use, and to authorize Local Leader to use, the contents and subject matter contained in any Advertisement including: (i) any Intellectual Property; (ii) any testimonials or endorsements contained in any Advertisement; (iii) any name, photograph, likeness, or identity of individuals, either living or dead, famous, or not famous; and (iv) any other rights, licenses, permissions clearance, or approvals which may be necessary;
(e) Advertiser has and will retain all rights necessary to grant the license to Local Leader set out in Section 6 (Local Leader’s License);
(f) the Advertisements do not and will not violate the intellectual property rights of any third party;
(g) to the extent that any Advertisement or Creative Component is delivered to Local Leader in electronic form, Advertiser will ensure it will not contain any viruses, time bombs, or other devices capable of disabling or interfering with any computer systems or software;
(h) Advertiser shall use the Ad Space solely for its own benefit and not for the placement of any third-party advertising; and
(i) Advertiser owns or otherwise has and will have the necessary rights and consents in and relating to the Advertiser Materials so that, as received by Local Leader and used in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any intellectual property rights of any third party or violate any applicable Law.
7.3 Local Leader Covenants. Local Leader shall not, and shall not grant any third party the right to, alter or delete any Advertiser Trademark or copyright notice included in any Advertisement.
7.4 Disclaimer of Performance of Advertisements. Local Leader makes no representations, warranties, or guarantees: (a) regarding the number of Impressions, Page Views, Clicks, or viewer actions that any Advertisement will generate; or (b) that any actual sales revenue will be earned by Advertiser as a result of any Advertisement.
7.5 NO OTHER REPRESENTATIONS, CONDITIONS, OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES, AND CONDITIONS CONTAINED IN THIS AGREEMENT, (A) LOCAL LEADER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) LOCAL LEADER SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. LOCAL LEADER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY DELIVERABLES OR RESULTS OF THE USE THEREOF, WILL MEET ADVERTISER’S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT. LOCAL LEADER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT CHANNELS WILL OPERATE OR THE ADVERTISEMENTS WILL DISPLAY WITHOUT INTERRUPTION OR ERROR. ADVERTISER CONFIRMS THAT IT HAS NOT RELIED UPON ANY REPRESENTATION, WARRANTY, OR CONDITION MADE BY LOCAL LEADER, OR ANY OTHER PERSON ON LOCAL LEADER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.
8.1 Advertiser Indemnification Obligations. Advertiser shall defend, indemnify, and hold harmless Local Leader, and its Representatives (each of the foregoing Persons, a “Local Leader Indemnified Party”), against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including legal fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), incurred by any Local Leader Indemnified Party arising out or resulting from any third-party claim arising out of, related to, or alleging:
(a) breach by Advertiser of any representation, warranty, condition, covenant, or other obligations set forth in this Agreement or any Accepted Insertion Order; or
(b) negligence or more culpable act or omission of Advertiser (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement.
8.2 Local Leader Indemnification Obligations. Local Leader shall defend, indemnify, and hold harmless Advertiser and its Representatives (each of the foregoing Persons, an “Advertiser Indemnified Party”), against any and all Losses, arising out of or resulting from any third-party claim arising out of, related to, or alleging:
(a) material breach by Local Leader or its Personnel of any obligations set forth in this Agreement or any Accepted Insertion Order; or
(b) gross negligence or more culpable act or omission of Local Leader (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement.
8.3 Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, neither Party is obligated to indemnify or defend the other Party or any of its Representatives against any Losses arising out of or resulting, in whole or in part, from the other Party’s:
(a) willful, reckless, or negligent acts or omissions;
(b) material breach of this Agreement.
8.4 Indemnification Procedures. A party seeking indemnification under this Section 8 (the “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim, provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defence of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; except that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle, or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defence at its own expense.
9. LIMITATION OF LIABILITY
9.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL LOCAL LEADER BE LIABLE TO ADVERTISER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES .
9.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL LOCAL LEADER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LOCAL LEADER PURSUANT TO THIS AGREEMENT IN THE SIX-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM AND $50,000.
10. CONFIDENTIALITY. From time to time during the Term, either Party (as “Disclosing Party”) may disclose or make available to the other Party (as “Receiving Party”) information about its business affairs and services, confidential information, and materials comprising or relating to trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 10 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable Law. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any third party, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 10 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
The terms of this Agreement and all Accepted Insertion Orders are the Confidential Information of Local Leader.
11. TERM AND TERMINATION
11.1 Term. The term of this Agreement commences on the Effective Date and continued until terminated as provided under this Agreement (the “Term”).
11.2 Termination. Either Party may terminate this Agreement:
(a) immediately upon written notice to the other Party:
(i) if the other Party materially breaches any provision of this Agreement or any Accepted Insertion Order and either the breach cannot be cured or, if the breach can be cured, it is not cured by the other Party within 30 days after its receipt of written notice of such breach; or
(ii) if the other Party (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business
(b) for convenience, upon 30 days advance written notice to the other Party.
11.3 Amendment Notice Termination. If Local Leader provides Advertiser with an Amendment Notice, Advertiser may terminate this Agreement immediately by providing Local Leader with notice of termination no later than seven days after delivery of the Amendment Notice to Advertiser. For such notice of termination to be valid, Advertiser must deliver the termination notice either by telephone at 1-866-721-3807 or by emailing the notice to firstname.lastname@example.org. Any termination notice delivered after the 7-day notice period has expired will be ineffective under this Section 11.3.
11.4 Effect of Termination.
(a) Expiration or termination of this Agreement will not affect any rights or obligations that:
(i) are to survive the expiration or earlier termination of this Agreement; or
(ii) were incurred by either Party prior to such expiration or earlier termination.
(b) Notice of termination under this Agreement will operate as an automatic cancellation of any Advertisements that are scheduled to be published subsequent to the date of the termination notice, subject to any unavoidable restrictions imposed by Local Leader’s production schedule. If Local Leader’s production schedule prevents automatic cancellation of any Advertisements, the effective date of termination of this Agreement, solely with respect to any such outstanding Accepted Insertion Orders, will be the date immediately following publication of the final Advertisement unable to be automatically cancelled.
(c) Termination of this Agreement does not obligate Local Leader to remove any Advertisements from its Channels.
(d) Following the termination of this Agreement, Local Leader shall promptly invoice Advertiser for any outstanding amounts due and owing under this Agreement, and Advertiser shall promptly pay all such amounts to Local Leader.
(e) If Local Leader terminates this Agreement pursuant to Section 11.2(b) or Advertiser terminates this Agreement pursuant to Section 11.3 (Amendment Termination Notice) and a deposit or advance payment has been made by Advertiser for any services that have not and will not be delivered to Advertiser following termination, Local Leader shall refund Advertiser on a pro-rata basis any fees paid in advance for services that Local Leader has not performed as of the effective date of termination.
11.5 Surviving Terms. The provisions of Sections 5, 6, 7, 8, 9, 10, 11.4. 11.5, and 12 as well as any other provision that must survive in order to give proper effect to its intent, will survive the expiration or earlier termination of this Agreement.
12.1 Further Assurances. Upon Party’s reasonable request, the other Party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
12.2 Entire Agreement. This Agreement, together with each Accepted Insertion Order, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
12.3 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
12.4 Governing Law. This Agreement, including all exhibits, schedules, attachments and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the province of Ontario.
12.5 Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud and statutory claims, in any forum other than in the courts of the province of Ontario and each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of such courts in any such action, litigation or proceeding. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
12.6 Notices. All notices or other communication that the Parties give each other in connection with this Agreement shall be in writing, and shall be delivered by hand, by registered mail or courier to the recipient at the Party’s address set forth on the first page of this Agreement, or by e-mail of a PDF to the e-mail address as set forth on the first page of this Agreement.
If delivered personally or by courier service, a notice or communication shall be deemed to have been received on the date of delivery. If sent by registered mail, a notice or communication shall be deemed to have been received on the second day following the date of mailing. If sent by email of a PDF document, a notice or communication shall be deemed to have been received on the Business Day following the date of transmission.
Either party to this Agreement may designate a change in address or e-mail address by providing notice to the other pursuant to this Section
12.7 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.8 Amendment and Modification. Local Leader may amend this Agreement from time to time by providing Advertiser with notice of the amended Agreement (“Amendment Notice”). Local Leader may provide Advertiser with such Amendment Notice by any reasonable means Local Leader chooses, including by sending Advertiser notice at the email address Local Leader has on file for Advertiser. Any and all such amendments are effective seven days after delivery of such Amendment Notice, unless Advertiser first terminates this Agreement pursuant to Section 11.3 (Amendment Notice Termination). Failure to terminate this Agreement pursuant to Section 11.3 (Amendment Notice Termination) before the expiry of the seven-day notice period will confirm Advertiser’s consent to the amendment referred to in the Amendment Notice. This Agreement may not be amended in any other way except through a written agreement signed by each Party.
12.9 Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
12.10 Assignment. Advertiser shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Local Leader (which consent shall not be unreasonably withheld). Local Leader may assign its rights or delegate its obligations under this Agreement by providing written notice to Advertiser. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating Party of any of its obligations hereunder.
12.11 Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control (the “Affected Party”) (other than the Affected Party’s lack of funds or negligence), including: (a) flood, fire (including forest fire), earthquake, solar flare, solar storm, or explosion; (b) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (c) a new Law that renders performance of the affected Party’s obligations impossible or commercially unreasonable; (d) actions, embargoes or blockades in effect on or after the date of this Agreement; (e) pandemic, epidemic, public health emergency, communicable disease outbreak (but excluding COVID-19 or any variant thereof unless there is an escalation in the levels of COVID-19 or any variant thereof relative to such levels as at the Effective Date); (f) national or regional emergency; (g) strikes (except involving the Affected Party’s personnel), labour stoppages or slowdowns or other industrial disturbances; (h) tsunami, electro-magnetic pulse, solar storm, extreme weather events, snow or ice storms, unpassable terrain or roads, explosion, asteroid impact; and (i) shortage of adequate power or transportation facilities (each, a “Force Majeure Event”).
An Affected Party shall give the other Party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. An Affected Party shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized, and resume full performance under this Agreement
12.12 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective permitted successors and permitted assigns.
12.13 Language. The parties have required that this Agreement and all documents and notices resulting from it be drawn up in English. Les parties aux présents ont exigés que la présente convention ainsi que tous les documents et avis qui s’y rattachent ou qui en découleront soient rédigés en anglais.
12.14 Independent Legal Advice. By signing this Agreement, each Party hereto confirms that: (a) such Party has either obtained independent legal advice with respect to the terms of this Agreement or that such Party has, despite having been given the opportunity to do so and being encouraged to do so, declined to seek independent legal advice with respect to the terms of this Agreement; and (b) such Party understands the terms of, and such Party’s grants, rights, obligations, and releases under, this Agreement.