ACUITYADS INC. TERMS AND CONDITIONS
These Terms and Conditions (the “Terms and Conditions”) are entered into between AcuityAds Inc. (“Acuity”), an Ontario corporation with offices at 5775 Yonge Street Suite 1802, Toronto, Ontario, M2N 4J1 and the entity specified in the applicable Insertion Order (the “IO”, and together with the Terms and Conditions, the “Agreement”) with offices at the address specified in the IO. Acuity reserves the right to update and change these Terms and Conditions from time to time without notice to Advertiser.
For the purposes of this Agreement, the following terms are defined as follows:
1.1. “Ad” means any advertisement (including, without limitation, all logos, trademarks, creative materials, graphic images and copy therein) provided to Acuity by Advertiser, including without limitation banner advertisements, text advertisements and video advertisements (as such terms are understood in the online advertising industry.)
1.2. “Ad Exchange” shall mean any exchange where Ad Inventory can be purchased can be purchased through an Auction.
1.3. “Ad Inventory” shall mean any digital advertising inventory made available for sale through an Ad Exchange, including, but not limited to, web display, mobile, application and/or widget-based advertising inventory.
1.4. “Advertiser” shall mean the Advertiser set forth in the IO and shall, for purposes of Advertiser’s obligations under these Terms and Conditions, include Client (as set forth in the IO). The obligations of Advertiser and Client under this Agreement shall be joint and several.
1.5. “Auction” means the real-time bidding process for Ad Inventory offered through Ad Exchanges.
1.6. “Campaign” means the advertisement campaign described in the IO for which Acuity has been retained by Advertiser.
For clarity, all capitalized terms used in these Terms and Conditions but not otherwise defined herein shall have the meaning ascribed to them in the IO.
2. ACUITY OBLIGATIONS
Subject to the terms hereof, Acuity hereby agrees, for and on behalf of Advertiser to: (i) bid on, and purchase, Ad Inventory made available in Auctions through Ad Exchanges, for the purposes of distributing and displaying Ads, all in accordance with the Campaign (the “Services”); and (ii) to deliver and transmit the Ads in connection with fulfilling the Ad Inventory purchased by Acuity for Advertiser hereunder. For clarity, subject to any restrictions or limitations set forth in the IO and the requirement to use good business judgment, Acuity shall have the sole and exclusive discretion as to how to provide the Services.
3. ADVERTISER OBLIGATIONS
No less than five (5) days prior to the commencement of any Campaign, Advertiser shall provide to Acuity the Ads that Advertiser wishes to have distributed pursuant to the Campaign. Advertiser hereby grants to Acuity a worldwide, royalty free, sublicensable, non-exclusive right and license to use, distribute, reproduce, publicly and digitally display and perform, transmit and broadcast (collectively, “Use”) the Ads (and any trademarks, tradenames, service marks, copyrights, URLs or other proprietary rights of Advertiser therein) in connection with the Campaign.
Advertiser represents and warrants to Acuity that each Ad (and any and all content therein) and the distribution thereof in accordance with this Agreement:
(a) complies, as applicable, with the Interactive Advertising Bureau (“IAB”) Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less (US), and/or the IAB Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less and Late Creative Policy (Canada);
(b) does not infringe the patents, copyrights, trademarks, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;
(c) does not violate any applicable law, statute, ordinance or regulation regarding the creation and marketing of online materials including, without limitation, those governing false and/or deceptive advertising;
(d) is true, accurate and complete;
(e) is not unlawful, defamatory or libelous;
(f) is not pornographic or obscene; and
(g) does not contain viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines.
Advertiser further represents and warrants that:
(a) prior to delivery to Acuity, Advertiser will have obtained all consents, releases, waivers and rights (including, without limitation, all rights in copyright, moral rights, trade-mark and trade name rights and other intellectual property rights) necessary for the grant to Acuity, and exploitation by Acuity, of the rights and licenses granted to Acuity in the Ads pursuant to this Agreement;
(b) Advertiser has paid, or will have paid prior to delivery of the Ads to Acuity, to the proper person, firm or corporation when due and payable, all residual, re-use or similar payments, all step-up fees, all music synchronization fees or royalties, all mechanical reproduction fees or royalties, all performance rights fees or royalties and all license payments and all other amounts payable to third parties as a result of, or in connection with, the Use of the Ads hereunder.
Acuity reserves, in its sole discretion, the right (but not the obligation) to: (i) review any Ads provided by Advertiser hereunder prior to Use; and/or (ii) to reject or refuse to serve any Ad that is, in its sole discretion, objectionable or which may expose Acuity, its suppliers and each of their affiliates, or its other clients to any harm or liability of any type.
4. BILLING TYPE
Advertiser agrees that it shall pay to Acuity all amounts owing to Acuity in accordance with the Billing Type set forth in the IO. For purposes of this Agreement:
“Cost Plus Campaign” means that Acuity will invoice Advertiser on a monthly basis for all Ad Inventory purchased hereunder pursuant to a Campaign, plus a percentage as set forth in the IO.
“Dynamic Campaign” means that Advertiser shall be charged on a floating CPM basis, as may be reasonably required by Acuity to achieve the Measurable Goals. For purposes of Dynamic Campaigns, Acuity shall invoice Advertiser the full amount of the Budget in advance, and Acuity shall use commercially reasonable efforts to achieve the Measurable Goals without exceeding the Budget.
“Fixed CPA Campaign” means that Acuity will invoice Advertiser on a monthly basis for the total number of actions delivered pursuant to the Campaign at the rate for such actions, as set forth in the IO.
“Fixed CPC Campaign” means that Acuity will invoice Advertiser on a monthly basis for the total number of clicks delivered pursuant to the Campaign at the rate for such clicks, as set forth in the IO.
“Fixed CPM Campaign” – means that Acuity will invoice Advertiser on a monthly basis for the total number of impressions (per thousand) delivered pursuant to the Campaign at the rate for such impressions, as set forth in the IO.
Notwithstanding anything to the contrary herein, Acuity reserves the right to purchase Ad Inventory for a Cost Plus Campaign using non-Ad Exchange/non-Auction media buys, and Advertiser agrees that it shall be liable for all costs associated therewith.
Unless otherwise stated in the IO, Advertiser shall remit payment to the Acuity within thirty (30) days of receipt of the applicable invoice. All late payments shall bear interest at the rate of 2% per month, or the highest rate allowable by law, whichever is lower. Advertiser agrees that it shall be solely liable for payment to Acuity of all amounts owing pursuant to the terms hereof, and (if Advertiser is an agency or intermediary) it shall make all necessary payments hereunder, notwithstanding any non-payment to Advertiser by any third party.
In the event of default relating to the payment of any invoice, Acuity shall have the right, without penalty or liability, to discontinue the performance of the Services. Furthermore, Advertiser agrees to pay all costs incurred by Acuity in collecting any delinquent payments, including, but not limited to, collection agency and attorneys’ fees and costs.
The term of this Agreement shall be as stated in the IO, unless earlier terminated in accordance with the terms hereof.
Either party may terminate this Agreement immediately upon written notice if any of the following events occur:
(a) subject to Section 7(b), the other party materially breaches or materially fails to perform any of its obligations under this Agreement, and such breach or failure to perform remains unremedied (if capable of being remedied) for a period of thirty (30) days after the other party has been given written notice thereof;
(b) the other party is in breach or default of any of its payment obligations under this Agreement and such breach or default remains unremedied for a period of seven (7) days after the other party has been given written notice thereof; or
(c) the other party becomes bankrupt, insolvent, makes a composition or arrangement with its creditors, has a receiver, administrator, administrative receiver or other encumbrancer take possession of or control over any substantial part of its assets, or otherwise undergoes any event analogous to any event referred to above in any jurisdiction.
In addition to the foregoing, Advertiser may terminate this Agreement without penalty within thirty (30) days of any changes or updates to these Terms and Conditions, as permitted in the Preamble, above. If Advertiser does not notify Acuity of its intent to terminate this Agreement within such thirty (30) day period, Advertiser will be deemed to have accepted the revised Terms and Conditions.
Upon termination of this Agreement and subject to Section 25: (i) Acuity shall immediately discontinue the Services, and all rights granted by Acuity to Advertiser under this Agreement shall cease; (ii) Advertiser shall promptly pay to Acuity all amounts properly due and owing to Acuity hereunder.
If at any time Acuity for any reason decides to cease general provision of the Services, Acuity may cancel the Services by providing not less than ninety (90) days’ notice to Advertiser. If Advertiser has pre-paid any funds, Acuity shall, without further liability to Advertiser, refund to Advertiser unspent portion of such funds, less any fees properly due and owing to Acuity.
8. DISCLAIMER OF WARRANTIES
THE SERVICES are provided “AS IS” and Acuity hereby expressly disclaims all warranties, expressed, statutory or implied, regarding THE services, ACUITY’S PLATFORM or any portion thereof, including any implied warranty of merchantability, fitness for a particular purpose, NON-INFRINGEMENT or OTHER implied warranties arising IN THE course of dealing or course of performance. Without limiting the generality of the foregoing, Acuity specifically disclaims, AND MAKES NO REPRESENTATIONS OR WARRANITES regarding: (1) the number of persons who will view or access the Ads; (2) any benefit Advertiser might obtain from the SERVICES OR A CAMPAIGN; (3) THAT THE SERVICES WILL INCREASE SALES, GOODWILL OR ACHIEVE A SPECIFIC RESULT; OR (4) THAT ACUITY WILL ACHIEVE THE MEASURABLE GOALS OR ACHIEVE THE MEASURABLE GOALS WITHIN THE BUDGET. ACUITY DOES NOT WARRANT: (A) THAT THE SERVICES WILL BE AVAILABLE AT ALL TIMES OR ANY GIVEN TIME, OR FROM ANY PARTICULAR LOCATION; (B) WILL BE SECURE OR ERROR-FREE; (C) THAT DEFECTS WILL BE CORRECTED; OR (D) THAT THE SERVICES AND THE PLATOFRM ARE FREE OF VIRUSES OR OTHER POTENTIALLY HARMFUL COMPONENTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ACUITY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
ADVERTISER FURTHER ACKNOWLEDGES AND AGREES: (1) THAT THE performance of the SERVICES is contingent upon SUCCESSFUL PERFORMANCE AND OPERATION OF the internet, AD EXCHANGES AND AUCTIONS AND, ACCORDINGLY, ACUITY SHALL NOT BE RESPONSIBLE FOR ANY FAILURES, DELAYS OR DAMAGES CAUSED BY THE MALFUNCTIONING OR DEFAULT OF same that are reasonably beyond the control of acuity; AND (2) All numbers and amounts contained in the IO relating to impressions, actionS, acquisitionS or applicationS are estimates only and are not guaranteed by Acuity. Acuity shall follow a uniform policy to avoid discrimination in its dealings with Advertiser and agencies. Although ACUITY makes every effort to uphold the highest standards of online marketing conduct, it will not be liable to Advertiser for any losses OR DAMAGES incurred by Advertiser through promotional activity engaged in by ACUITY on behalf of Advertiser pursuant to this AGREEMENT.
9. LIMITATIONS ON LIABILITY
NEITHER ACUITY NOR ITS AFFILIATES WILL BE LIABLE, UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUE, LOSS OF PROFITS, BUSINESS INTERRUPTION, AND/OR LOSS OF INFORMATION OR DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH IN THIS PARAGRAPH ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ADVERTISER AND ACUITY. ACUITY’S SERVICES WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, ACUITY’S MAXIMUM AGGREGATE LIABILITY TO ADVERTISER (OR ITS CLIENTS) FOR ANY CAUSES OF ACTION WHATSOEVER, AND REGARDLESS OF THE FORM OR CAUSE OF ACTION, WILL BE THE GREATER OF: (i) ONE HUNDRED DOLLARS ($100.00); OR (ii) TWENTY-FIVE PERCENT OF THE AMOUNTS ACTUALLY RECEIVED BY ACUITY UNDER THIS AGREEMENT.
Advertiser acknowledges and agrees that all software, technology, know-how, information, data, content, and other property provided, created, developed or licensed by Acuity in the performance of the Services (collectively, “Intellectual Property”) is confidential and proprietary to Acuity. Advertiser agrees that it shall not during the Term of this Agreement or thereafter: (i) copy, alter, decompile, translate, disassemble, modify, reverse-compile, reverse engineer, redistribute, make any derivative use of, furnish, distribute, rent, sell, lease, lend, sublicense, give or otherwise transfer, permit access to or disclose the Intellectual Property, or any part thereof, or any interest therein, in any form to any other firm, person or entity without the express written consent of Acuity; (ii) use the Intellectual Property or the Services: (A) for any illegal purpose or in a manner that violates any applicable law or regulation; or (B) in a manner that infringes the rights of any third party, including without limitation, intellectual property, privacy, publicity or contractual rights.
Advertiser acknowledges and agrees that all proprietary rights in the Intellectual Property provided or otherwise utilized in connection with this Agreement are and shall remain the property of Acuity and Advertiser shall have no right or interest in the Intellectual Property other than as expressly set forth in this Agreement and that this Agreement shall not be construed as granting Advertiser any right or license, whether by implication, estoppel or otherwise, not expressly set forth in this Agreement. This Agreement does not transfer ownership rights of any description in the Intellectual Property to Advertiser or to any other third party.
11. PUBLICITY AND CONTENT DISTRIBUTION
Advertiser agrees that part of the consideration being provided to Acuity pursuant to this Agreement is the right for Acuity to cite Advertiser from time to time on the Acuity website, in presentations, speeches, press release and other media as a client of Acuity.
As used herein, “Confidential Information” shall mean: (a) either party’s proprietary information; (b) information marked or designated by either party as confidential; (c) suppression lists disclosed between the parties pursuant to this Agreement; (d) information otherwise disclosed by either party in a manner consistent with its confidential nature; (e) the terms and conditions of this Agreement, including pricing information; and (f) either party’s information that is conveyed to the other party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential. The parties acknowledge that, as a result of the provision of the Services, one party may disclose Confidential Information (“Disclosing Party”) to the other party (“Receiving Party”). Therefore, the Receiving Party agrees that it will make no use (expect solely for purposes of this Agreement) or disclosure of the Disclosing Party’s Confidential Information without obtaining the Disclosing Party’s prior written consent. Additionally, the Receiving Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s) and/or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) shall be explicitly bound confidentiality obligations no less restrictive than as set forth herein, and will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. Nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in, or making any representations or warranties in respect of, any Confidential Information disclosed under this Agreement (and each Party’s reliance on such Confidential Information is at its sole risk and responsibility.) This Section 12 shall survive any termination of this Agreement for a period of three (3) years thereafter. The Receiving Party agrees that monetary damages for breach of confidentiality under this Section 12 may not be adequate and that the Disclosing Party shall be further entitled to seek injunctive relief. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where the Receiving Party can demonstrate with clear evidence that the information: (a) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of the Receiving Party; (c) was rightfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (d) was disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
Advertiser agrees to indemnify, defend and hold harmless Acuity, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys’ fees) asserted by any third party due to, arising from, or in connection with: (i) any Ad supplied by Advertiser hereunder; (ii) any breach by Advertiser of the terms of this Agreement including, without limitation, any representation or warranty contained herein; or (iii) the negligence, wilful misconduct or fraudulent activities of Advertiser.
During the Term of this Agreement and for a period of one (1) year following the termination of this Agreement, Advertiser shall not solicit, seek out or employ, either directly or indirectly (as a consultant, independent contractor or otherwise) any employee or consultant engaged by Acuity who is or was associated with the performance of Acuity’s obligations pursuant to this Agreement, except without the prior written consent of Acuity. Notwithstanding the foregoing, the hiring of employees who respond to a generally advertised job opening shall not be considered a solicitation as contemplated by this clause.
All references in this Agreement to dollars, unless otherwise specifically indicated, are expressed in US dollars if Advertiser’s registered office is in the US, and in Canadian dollars if Advertiser’s registered office is in Canada.
16. GOVERNING LAW/JURISDICTION
Any dispute arising from or related to this Agreement will be governed by the laws of the Province of Ontario without regard to conflict of law principles. Subject to Section 17, below, the exclusive jurisdiction and venue of any action with respect to the subject matter of this Agreement will be the Courts of the Province of Ontario located in Toronto, Ontario, Canada and each of the parties hereto irrevocably waives any objection to jurisdiction and venue in such courts.
17. DISPUTE RESOLUTION
Any dispute regarding this Agreement, including the validity, existence, binding effect, interpretation, performance, breach or termination, and including tort claims, shall be referred to and finally determined, to the exclusion of the courts, by a single arbitrator. The arbitration shall take place in Toronto, Ontario, in English, and in accordance with the National Arbitration Rules of the National Arbitration Institute of Canada, Inc. In all other respects the arbitration shall be governed by and subject to the Ontario Arbitration Act.
UNLESS OTHERWISE REQUIRED BY LAW, ADVERTISER MUST NOTIFY ACUITY WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A DISPUTE OR ADVERTISER WAIVES THE RIGHT TO PURSUE ANY CLAIM BASED ON SUCH EVENT, FACTS OR DISPUTE.
18. WAIVER OF CLASS ACTIONS
To the fullest extent permitted by applicable law, all parties to any action arising out of or in connection with the Services or THIS AGREEMENT must be individually named. ADVERTISER hereby waiveS any right IT MAY HAVE for any dispute pertaining to the Services or THIS AGREEMENT to be arbitrated or litigated on a class action or consolidated basis, or on bases involving disputes brought in a purported representative capacity on behalf of the general public.
Advertiser may not assign this Agreement without prior written consent from Acuity, which consent shall not be unreasonably withheld or delayed. Acuity may assign all or any portion of its duties and obligations hereunder to any affiliate, successor-in-interest and/or acquirer of all or substantially all of Acuity’s assets. Subject to the foregoing, the terms of this Agreement will be fully binding upon, inure to the benefit of and be enforceable by, the parties’ respective successors, heirs, executors, administrators and permitted assigns.
Any term or provision of this Agreement that is invalid or unenforceable in any situation or in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
21. SECTION REFERENCES
The section and subsection headings used in this Agreement are for reference and convenience only, and shall not affect in any way the meaning or interpretation of the Agreement. The IO, including all approved amendments, are incorporated into and a part of this Agreement.
The failure of Acuity to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable.
23. Relationship of the Parties
The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employer-employee relationship is intended or created hereby. Notwithstanding Section 1.4, if Advertiser is entering into this Agreement on behalf of a third party, such third party shall have not have any rights under this Agreement.
24. FORCE MAJEURE
Neither Acuity nor any of its suppliers shall be liable to Advertiser for any delay in performance or failure to perform caused directly or indirectly by fire, explosion, accident, flood, labor trouble, weather condition, any regulation, rule or act of any government or governmental agency, or the inability to obtain or shortage of suitable material, components, parts, equipment, machinery, fuel, power, communication facilities or transportation, act of God, armed conflicts, civil commotion or any other cause of like character beyond the reasonable control of Acuity or any of its suppliers.
If Acuity terminates this Agreement for any reason, all rights and obligations under this Agreement shall cease, save for Advertiser’s obligation to pay all fees property due and owing to Acuity hereunder to the date of termination. In addition, the following sections: 8 – 14, 16 – 19 and 25 and such other provisions hereof of thereof which expressly, or by their nature are intended to, survive termination.
26. Entire Agreement
This Agreement sets forth the entire understanding and agreement of the parties and supersedes any and all prior oral or written agreements or understandings between the parties as to the subject matter of this Agreement. This Agreement is non-exclusive to Acuity and Acuity shall have the right to enter into similar agreements with other third parties. The parties hereby represent and warrant that they shall at all times fully comply with all applicable state and federal statutes, rules and regulations with respect to their respective businesses including, without limitation laws governing deceptive trade practices.
Advertiser shall promptly notify Acuity in the event it: (i) becomes subject to any bankruptcy or insolvency proceedings; (ii) has a dispute with Acuity; or (iii) otherwise is required to provide notice to Acuity hereunder. Advertiser shall deliver any and all notices required to be delivered to Acuity hereunder by Mail Notification (as defined below) to the address set forth above, Attn: Accounting. Advertiser hereby acknowledges and agrees that Acuity may deliver any notice required to be delivered to Advertiser either by means of posting such notice to Acuity’s website located at www.acuityads.com (“Web Notification”) by email to the email address of Advertiser indicated in the IO (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of Advertiser (“Mail Notification”). Any such notification shall be deemed effective: (i) in the event of Web Notification, on the earlier of the date the Advertiser next visits Acuity’s website or thirty (30) days from the date such Web Notification is posted on Acuity’s website; (ii) upon transmission when delivered by Email Notification; or (iii) when delivered by Mail Notification.