RMG Insights Reporting Terms and Conditions

 

 

1. Introduction

These Insights Reporting Terms and Conditions: (a) set forth the terms and conditions upon which RMG may deliver Reports and Consultations; (b) shall be fully incorporated into and integrated with any Insertion Orders and; (c) are applicable to all follow-on business Advertiser does with RMG, whether for modification of the first Insertion Order, or additional Report requests made from time to time by Advertiser and accepted by RMG. Capitalized words used in this Agreement shall have the meanings ascribed to them in Section 2 below.

 

2. Definitions

– “Advertiser” means the advertiser or the client for whom an Agency is the legally authorized agent under an applicable IO which authority provides Agency the right to enter into and bind Advertiser in respect of media placement agreements. RMG reserves the right to request proof from Agency to evidence any such authority.

– “Agency” means the advertising agency, if any, listed on an applicable IO.

– “Agreement” means these Insights Reporting Terms and Conditions and each Insertion Order that references these Insights Reporting Terms and Conditions.

– “Business Day” means a standard work day (between 9am-5pm of each party’s head office’s time zone) and does not include statutory holidays, Saturdays, or Sundays.

– “Insertion Order” and “IO” means an order document signed by Advertiser (or, if applicable, Agency) and tendered to RMG requesting specific Advertisements, Campaigns or Reports.

– “Representatives” when used with respect to RMG means RMG’s affiliates, agents, officers, directors, consultants and employees.

– “RMG” means Retail Media Group Inc., a federally incorporated Canadian company.

– “Taxes” means any government imposed taxes or charges imposed on Advertiser pertaining to the performance of this Agreement, including but not limited to value added, sales, use, withholding and excise taxes.

– “Terms and Conditions” means these Advertiser Terms and Conditions.

– “Third Party” means an entity or person that is not a party to an IO and specifically excludes RMG, Agency, Advertiser, and any of their affiliates or Representatives.

 

3. Payment Terms

All payments are paid in advance of receiving report or consultation. Payments shall be made to RMG via online banking, EFT or Pre-authorized debit. Advertiser acknowledges that where payment is not received, RMG shall not be required to provide the report or consulation until all payments due are paid up to date. RMG may, in its sole discretion, extend, limit, revise or revoke credit terms to Advertiser. Advertiser shall pay all Taxes in connection with Advertiser’s performance hereunder. Payments due under this Agreement are exclusive of Taxes, unless otherwise agreed in writing by RMG.

 

4. Representations, Warranties and Covenants of Advertiser

Advertiser represents, warrants and covenants that:

– Advertiser is not in violation of any obligation, contract, agreement, or law, by entering into this Agreement, by performing its obligations hereunder, or by authorizing and permitting RMG to perform the Services hereunder;

– Advertiser has the unrestricted power and authority to enter into and perform its obligations under this Agreement; all consumer data collected pursuant to this Agreement shall only be used for legal purposes; and the use, reproduction, distribution, or transmission of the Advertisements and any and all other materials provided by Advertiser to RMG shall not, violate any foreign or domestic, federal, state, or local law or regulation, or any rights of any third party, including, but not limited to, any copyright, patent, trademark, trade secret, music, image, or other proprietary, property or contractual right, or constitute false advertising, unfair competition, invasion of privacy or rights of celebrity, or any other right of any person or entity.

 

5. Confidentiality

“Confidential Information” generally means any information disclosed by either party to the other party that is designated as “Confidential,” “Proprietary,” or some similar designation, or which may reasonably be inferred being proprietary and/or confidential in nature. Information communicated orally shall be deemed

Confidential Information if such is confirmed in writing within 120 days after the oral disclosure. Without limiting the generality of the foregoing, RMG’s Confidential Information includes, without limitation, this Agreement, all information related to the Campaign, and information pertaining to publishers and other advertisers.

Confidential Information does not include information that the receiving party can document:

– is or becomes (through no improper action or inaction of the receiving party or its Representatives) generally known by the public,

– was in its possession or known by it without restriction prior to receipt from the other party,

– is independently developed by the receiving party without use of or reference to the Confidential Information of the other party,

or

– becomes available to it from a source other than the other party or its Representatives having no obligation of confidentiality.

Each party shall protect the other party’s Confidential Information using the same means it uses to protect its own, but in any event not less than reasonable means. These obligations shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and generally available through no action or inaction of the receiving party.

Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement and may only provide such Confidential Information to its Representatives who have a “need to know” such Confidential Information and who have provided written assurance sufficient to ensure such Representatives’ compliance with, or are otherwise obligated to honour, the terms of this Agreement, or as required by law (provided prompt notice of such required disclosure is provided to the disclosing party prior to disclosure where permissible).

Each party shall be responsible for a breach of these confidentiality provisions by any of its Representatives and shall promptly notify the other party upon discovery of any unauthorized use or disclosure of Confidential Information and will cooperate with the other party in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use.

The parties agree and understand that a material breach of this Section 7 will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such breach. Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, be entitled to seek preliminary and permanent injunctive relief. The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each party’s decision to enter into this Agreement.

 

6. Limitation of Liability

Under no circumstances will RMG or Advertiser be liable under any contract, strict liability, negligence or other legal or equitable theory, for any incidental, indirect, special or consequential damage or damages for lost profits, revenue or data in connection with the subject matter of this Agreement, even if such party has been advised of the possibility of such damages and even if such damages are foreseeable to the fullest extent permitted by law and notwithstanding anything to the contrary elsewhere herein. In no event shall RMG’s aggregate liability arising out of or with respect to this Agreement exceed the total amounts paid and payable by Advertiser under, or in connection with, this Agreement in the six (6) months prior to the event giving rise to the claim.

 

7. Indemnity

Each party will indemnify and hold harmless the other party from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by a party (and its successors and assigns) arising out of a third party claim related to the other party’s breach of any provision or term of this Agreement. In addition, Advertiser will indemnify and hold harmless RMG from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by RMG and/or its publishers arising out of or relating to:

– the content or subject matter of any Advertisement, Insertion Order or collateral information to the extent used by RMG or its publishers in accordance with this Agreement (including, but not limited to, allegations that subject matter violates the rights of a third party, causes emotional or physical injury to any third-party is defamatory or obscene or violates any law, regulation or other judicial or administrative action); or

– the Advertiser’s intellectual property, including but not limited to any infringement action, misuse, registration or non-registration.

 

8. Disclaimer of Warranties

The service provided by RMG, its use and the results of such use are provided on an “as is,” “as available” basis. To the fullest extent permissible pursuant to applicable law, RMG makes no warranties (including implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement), guarantees, representations, promises, statements, estimates, conditions, or other inducements, implied, oral, written, or otherwise except as expressly set forth herein. RMG does not warrant or guarantee conversion rates, pay up rates, response rates or ability to convert the responses into sales. RMG does not warrant or guarantee the profile or demographics of a respondent. All orders are contingent upon RMG’s ability to procure necessary on-line access. RMG will make every effort to meet scheduled delivery and online dates, but makes no guarantee and accept no liability for its failure to meet said dates.

 

9. Termination

RMG may terminate or cancel this Agreement or any Insertion Order at any time, in its sole discretion, upon written notice to Advertiser (such notice may be in the form of electronic notification). Advertiser may terminate this Agreement or an Insertion Order or one or more Campaigns within an Insertion Order upon ten (10) business days’ written notice to RMG.

 

10. Agency

If this Agreement is executed by an Agency, Agency hereby represents that it has all due authority to create a legally binding agreement on behalf of Advertiser and this Agreement shall be so binding. Agency further agrees that it will be jointly and severally liable for any and all payments, damages and other liabilities under this Agreement to which Advertiser would be responsible.

 

11. Publicity

Advertiser grants RMG a limited, revocable, fully-paid, royalty-free, worldwide right and license to display Advertiser’s logo in promotional material to identify Advertiser as a customer of RMG. Additionally, RMG may reference Advertiser in a general press release which does not reveal any specific terms or conditions of this Agreement, depicting Advertiser’s corporate logo, publicizing the fact that an agreement has been executed. Any other public statement or press release referencing the name or trademark of a party shall only be made upon the express prior written consent of such party.

 

12. Entire Agreement

This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties with respect to their subject matter. Neither party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any course of dealing between the parties. The terms and conditions of the Insertion Order shall govern and control to the extent of any inconsistency between the terms set forth in the Insertion Order and these Terms and Conditions.

 

13. Choice of Law and Venue

This Agreement shall be interpreted and enforced in all respects under the laws of the Province of Alberta, as applicable to contracts to be performed entirely within the Province of Alberta. Any litigation arising out of this Agreement will be brought solely and exclusively in the provincial or federal courts located in Alberta, Canada, and the parties agree that jurisdiction and venue properly lie in such courts, and waive any claim that a proceeding in any such court has been brought in an inconvenient forum.

 

14. Force Majeure

Except as otherwise expressly stated in this Agreement and except for payment obligations, the parties shall not be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, terrorism, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.

 

15. Waiver

Failure by RMG to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect RMG’s right later to enforce such provisions.

 

16. Severability

If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.

 

17. Miscellaneous

RMG and Advertiser are independent contractors and agree that this Agreement does not establish any agency, joint venture or partnership between them. Advertiser may not assign this Agreement without the prior written consent of RMG, which shall not be unreasonably withheld. Any attempted assignment without such prior written consent shall be null, void and without effect. This Agreement is binding on the successors and permitted assigns of each of the parties. An Insertion Order may only be modified via written notice and the written agreement of both parties (such notice may be in the form of electronic notification). Notwithstanding the foregoing, in the event any modifications requested to an Insertion Order are requested by Advertiser in writing, and such changes are subsequently implemented by RMG (with or without any other written confirmation), such modifications will be deemed accepted by both parties. No modification will be effective to this Agreement unless made in writing and signed or acknowledged by both parties (email shall suffice).