SoCast Ad Extension: Terms and Conditions

SoCast Ad Extension: Terms and Conditions

SoCast License Agreement Terms & Conditions

This License Agreement (this “Agreement), is entered into as of (the Effective Date”) , by and between:

SoCast, INC. (the “Licensor”), a corporation organized and existing under the laws of the Province of Ontario, with its head office located at 410 Adelaide St. W, Suite 200, Toronto, ON, Canada, M5V 1S8

  • and -

LICENSEE (the “Licensee”).

In consideration of the mutual promises contained herein, the parties agree as follows:

  1. DEFINITIONS.

When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined:

  1. “Add-On(s)” means any and all modules which the Licensee can choose to license in addition to the Base Software;

  2. “Activation Date” refers to the date upon which the Software shall be made available to the Licensee;

  3. “Activation Privacy Standards” means the Licensor’s privacy policies, and all applicable provincial and federal privacy legislation;

  4. "Agreement" includes this agreement and all Schedules thereto;

  5. “Brand” means one distinctly marketed entity (e.g. a radio station, a TV show, a product, a service);

  6. “Base Software” means the basic version of SoCast to which any and all Add-Ons can be added;

  7. “Confidential Information” means any and all information disclosed by the Licensor to the Licensee in connection with the negotiation or fulfillment of obligations under this Agreement, including any and all information in respect of the Licensed Product, disclosed prior to the Execution Date, during the Term, and/or thereafter;

  8. “Customization” means the enhancements and developments made by Licensor in order to adapt the Base Software to the specific requirements of the Licensee;

  9. "Delivery Date" means the date the Licensor provides access to the Licensee of the Licensed Product;

  10. "Designated Environment" means the Licensor’s web servers and sub-domains which host the Licensee’s content and database;

  11. "Documentation" means the written user, system and activation documentation for the Software;

  12. “End User” means any and all individuals or users of the Website(s), whom the Licensee permits to access and utilize, but not to further distribute the Licensed Product;

  13. "Error" means a material failure of the Software to function in conformity with the specifications as agreed upon by the parties hereto in the Documentation and not modified pursuant to mutual agreement;

  14. “Execution Date” refers to the date upon which this Agreement is signed by all parties hereto;

  15. “Fees” refers to any and all monetary charges or costs for the Software and services related thereto payable by the Licensee to the Licensor, which shall be payable in the currency billed;

  16. “Licensed Product” shall mean the Software, together with Documentation, limited to the scope of attached Schedules;

  17. “Licensee Data” means the databases created and controlled by the Licensee, including data specific to the End User, and any and all content on the Website(s) not delivered by the Licensor;

  18. “Normal Business Hours” means the hours between 9am and 6pm EST, Monday to Friday.

  19. “Renewal Date” refers to the date upon which the Term concludes, in the event that the Agreement is extended;

  20. "Schedule" refers to any schedule attached to this Agreement, or any subsequently prepared document which the parties agree in writing to be considered a Schedule, including “Software Licenses and Support Services” Schedules;

  21. "SoCast” means the Social Digital Platform Software service currently consisting of at least the following products, exclusive of configuration: SoCast WEB, SoCast APP, SoCast Social, SoCast Email, SoCast Members, SoCast Promotion, SoCast Analytics, SoCast Player, SoCast AdTech, SoCast Adsynch, SoCast Ads, SoCast Themes, SoCast Stream, and SoCast Voice. Actual product(s) included in License will be defined in annexed Software Licenses and Support Services Schedules.

  22. “Software” means the hosted application service marketed under the name “SoCast”, and consisting of the Base Software together with any Add-Ons licensed or purchased from the Licensor by the Licensee, limited to attached Schedules;

  23. “Statement of Work” means the agreement that Licensor shall furnish to Licensee for such services as Licensee may request from time to time, including services relating to integration and customization of the Licensed Product, at Licensor's then-current rates. The provision of such services shall be governed by statements of work (“SOW”) executed by the parties.

  24. “Specifications” means the specifications in connection with each activation of the Software delivered hereunder;

  25. “Term” means a period beginning as of the Execution Date during which the license for the Software is valid, and ending on the date specified in the annexed Software Licenses and Support Services Schedule(s);

  26. “Third Party API” means an external application that provides public access to it via an open protocol and subject to a general license of terms and conditions;

  27. “Website(s)” interactive website(s) operated by the Licensee on sub-domains, owned and controlled by the Licensor, and on/through which the Software is installed and shall operate.

  1. SOFTWARE LICENSE

  1. License. Subject to the terms and conditions herein, the Licensor hereby grants to the Licensee a non-exclusive, non-transferable license to use the Licensed Product solely for its operations on the Designated Environment as set out in any Software & Support Services Schedules issued to the Licensee, which may be amended from time to time.

  2. General Limitations and Express Restrictions on Use.  The Licensee acknowledges that this is a license, not a transfer of title, to the Licensed Product, and the Licensor retains ownership of all copies of the Licensed Product.  The Licensee further acknowledges that the Licensed Product, including the structure, organization, and source code of the Software Platform, constitute valuable trade secrets of the Licensor.  Accordingly, unless expressly permitted herein and without the prior written consent, the Licensee hereby agrees not to:

  1. copy, sell, re-sell, sublease, lease, license, sublicense, rent, reproduce, distribute, export, re-export, republish, download, post, frame or transmit in any form or by any means or allow another to use or access the Licensed Product, other than through the legitimate access granted to its licensees, users, suppliers and business partners in accordance with the provisions of this Agreement, it being understood that any attempt to sell, transfer, assign or sublicense this license shall be void;

  2. translate, create derivative works, modify, adapt, alter, reverse engineer, merge, separate, disassemble or decompile the Licensed Product or any part thereof including the correction of any Error;

  3. intentionally transmit any data to the Software that contains software viruses or other harmful or deleterious computer code, files or programs;

  4. interfere with or disrupt services or networks connected to the Software, or violate the regulations, policies or procedures of such networks;

  5. disclose, provide or otherwise make available trade secrets contained within the Licensed Product in any form to any third party, and the Licensee hereby agrees to implement reasonable security measures to protect such trade secrets;

  6. disclose the results of any testing of the Licensed Product to any third party; or

  7. otherwise use or permit access to the Licensed Product except as expressly allowed in this Agreement.

  1. ACTIVATION, AND ONGOING SERVICES.

  1. Delivery and Activation.  The Licensor shall activate the Licensed Product to the Licensee on the Delivery Date.

  2. Maintenance. Licensor will deliver to Licensee, as made commercially available by Licensor, bug fixes, maintenance updates and major releases for the Software ("Updates"), which will thereafter be considered "Basic Software" as defined herein. As deemed appropriate by Licensor in its sole discretion, Licensor may furnish Licensee with release notes identifying each change with each Update. If Licensee reports an error or issue with the Software, Licensor shall use commercially reasonable efforts to acknowledge such error or issue. If Licensee reports an error or issue with the Software that is scheduled by Licensor to be addressed in a later Update, Licensor may address such error or issue in such Update. Licensee agrees to pay Licensor at Licensor's standard rates for all effort expended towards resolution of any error or issue which is later determined to result from any cause other than an error or issue in the Software.

  1. SERVICE LIMITATIONS.

  1. The Maintenance does not include, nor will Licensor be obligated to provide, services required as a result of: (a) any modification, reconfiguration or maintenance of the Software not performed or recommended by Licensor; (b) any use of the Software on or with systems and third-party applications that do not meet Licensor's minimum standards for such; (c) any third party hardware or software not supported or embedded by Licensor; (d) any configuration or reconfiguration of the Software (or hardware configurations) other than as recommended by Licensor; or (e) any error caused by Licensee's or any third party's negligence, abuse, misapplication, or use of Software other than as expressly permitted under the Agreement. If Licensee or third party modifies Licensor recommended or tested configuration, including third-party applications currently in use that are essential to platform operation, or changes third party providers, Licensee agrees to pay Licensor at Licensor's standard rates to reconfigure the platform and as necessary, third-party applications. In no event shall Licensor have any responsibility to correct any problems or damage resulting from unauthorized changes to or modification of Licensed Product made by Licensee.

  2. Licensor has the right to impose limits on excessive Traffic, Storage & Bandwidth usage via any means available to Licensor. Excessive use of Traffic, Storage & Bandwidth shall mean usage which places an
    unusually excessive burden on Licensor’s servers, or goes above “Reasonable Usage”. Reasonable Usage, as usage relates to Traffic, is defined as usage that does not exceed the total volume of Traffic (i.e. Pageviews) per month across all sites at the time Agreement is executed (hereinafter “Volume”). Volume equal to 1 Million Pageviews per month across all sites will be included. Licensor reserves the right to bill Licensee for Volume increases greater than 25% of the Licensee’s average monthly Volume. Average Volume will be tracked monthly, and reconciled for billing at the end of license year, or sooner at the discretion of Licensor.

  3. Licensor agrees that the Software will be available for use 99.5% of the time, measured on an annual basis by Licensor. Unplanned outages whose root cause is not attributed to Licensor’s deliverables are excluded from the measurement calculations. Planned outages (scheduled maintenance windows) for normal maintenance, preventative maintenance, or Software upgrades, changes, testing and non-operational hours are not included in this measurement calculation.

  1. FEES, COSTS, PAYMENT AND FURTHER CONSIDERATION.

  1. Price.  The Licensee shall pay the Fees in accordance with the Fees and Payment Plan set forth in Schedule “A”, and/or other Schedules attached hereto and shall be made in full within ten (10) days of the said dates without any right of set-off or deduction. All Fees shall be paid in the currency billed.

  2. Tax.  The Licensee shall be responsible for any and all applicable sales or use taxes or any value added or similar taxes payable with respect to the licensing of the Licensed Product, or arising out of or in connection with this Agreement, other than taxes levied or imposed based upon the Licensor’s income.

  3. Condition Precedent: Advance payment in full of fees due and owing to Licensor is a condition precedent to commencement of any work by Licensor pursuant to this Agreement. Licensor may suspend any or all Software and Support Services on 30 days' advance written notice to Licensee if payment for any Service is overdue by more than 60 days. Licensee agrees to pay Licensor’s then current reinstatement fee following a suspension of service for non-payment. Licensor may charge interest on amounts that are overdue. Licensee agrees to pay Licensor’s reasonable costs of collection of overdue amounts.

  4. Interest.  Delinquency in payment may result in a suspension of the licensed Software, a delay in implementation timetable or services (including support services) provided by Licensor, or additional support fees. Licensor will provide Licensee with a thirty (30) day notice and cure period in writing prior to taking an action on Licensee’s account. Any amounts owed to the Licensor hereunder and not paid in accordance with this Agreement shall be subject to an interest rate equal to two percent (2%) per month or the maximum rate allowed by law, to accrue on a daily basis after as well as before any judgment relating to collection of the amount due. In an action for collection of amounts withheld, the Licensor is entitled to recovery of its reasonable legal fees and costs.

  5. Inflation Adjustments. Where services are provided by Licensor over multiple calendar years, Licensor may increase its fees at the beginning of each calendar year to reflect increases in Licensor’s business costs on a prospective basis. Licensor’s overall costs may be increased for the next twelve (12) month period by three percent (3%).

  1. PROPRIETARY RIGHTS.

  1. Licensor Property.  The Licensee hereby acknowledges and agrees that any and all right, title and interest, including the copyright, patent, trade secret, code base, algorithms, sub-domains, contents, design and copy assets, and derivative works, modifications and revisions to the Software, and all other intellectual property rights of whatever nature, in and to the Licensed Product are and shall remain the property of the Licensor throughout the Term and upon expiration of this Agreement, and nothing in this Agreement should be construed as transferring any aspects of such right, title and interest to the Licensee or any third party.

  2. Licensee Property. Subject to payment in full for all amounts due and owing Licensor, the Licensee shall retain all right, title and interest in and to the Licensee Data throughout the Term and upon expiration of this Agreement. For clarity, Licensee will be permitted to transfer Licensee Data to a data custodian of their choosing at Licensee’s own discretion and risk.

  3. Use of Marks.  During the Term of this agreement, Licensee hereby grants Licensor a non-exclusive, worldwide, royalty-free, fully paid, non-transferable right to at least the following uses of Licensee’s marks: use Licensee’s name, logos and marks on Licensor’s website, customer lists, advertising, marketing materials, press releases, case studies.

  1. CONFIDENTIALITY AND NON-DISCLOSURE.

  1. Confidential Information. The Licensee acknowledges the confidential and proprietary nature of the Confidential Information and agrees that it shall not reveal or disclose any Confidential Information for any purpose to any other person, firm, corporation or other entity, other than Licensee’s employees with a need to know such Confidential Information to perform employment responsibilities consistent with the Licensee’s rights hereunder. The Licensee shall safeguard and protect the Confidential Information from theft, piracy or unauthorized access in a manner at least consistent with the same standard of care the Licensee uses to protect its own confidential information. The Licensee hereby agrees to inform its employees of their obligations under this Agreement, and shall take such steps as may be reasonable in the circumstances, or as may be reasonably requested by the Licensor, to prevent any unauthorized disclosure, copying or use of the Confidential Information.

  2. Unauthorized Disclosure. The Licensee shall notify the Licensor immediately upon discovery of any prohibited use or disclosure of the Confidential Information, or any other breach of these confidentiality obligations by the Licensee, and shall fully cooperate with the Licensor to help the Licensor regain possession of the Confidential Information and prevent the further prohibited use or disclosure of the Confidential Information.

  1. LIMITED WARRANTY, REMEDIES AND LIABILITY

  1. The Licensor warrants that Licensed Product and updates will perform substantially in accordance with the Documentation in effect as of the date of this Agreement or as may be updated from time to time.   The warranties contained in this Section are made for the Term of this Agreement. The Licensor has no control over the conditions under which the Licensee or its End Users use the Licensed Product or updates and does not warrant the results obtained by such use.

  2. The warranties expressed above are made in lieu of all other warranties, whether implied, oral or written.

  3. Subject to Section 9 of this Agreement, the Licensee’s sole and exclusive remedy, at law and equity, shall be the correction of Licensor Software to meet this warranty; or pro-rata service credit for downtime periods and performance problems within the reasonable control of Licensor.

  4. The Licensor’s total liability to the Licensee under this Agreement, if any, shall not exceed the annual Licensor License Fee paid.  The Licensor’s liability to the Licensee, if any, shall be limited to direct damages. These limitations apply to all causes of action, including breach of contract and tort, other than willful and wanton acts and those of gross negligence. The Licensee’s total liability to the Licensor under this Agreement, if any, shall not exceed two times the annual Licensor License Fee paid.

  1. SYSTEM AND DATA SECURITY

  1. Licensee Data.  The Licensor shall use best commercial efforts to protect the Licensee Data from any loss or damage in connection with the use of the Licensed Product.

  2. Cookies.  The Licensor may use cookies in the implementation of the Software and to allow access for the End Users.  The Licensee hereby acknowledges and understands that, in the event that the Licensee chooses to disable the use of cookies by changing web browser settings, certain functionality of the Licensed Product may not function as intended. Licensee shall have the right to request access to available cookie data.

  3. The Internet and/or Third Party APIs. The Licensee hereby elects to access the Licensed Product through the internet and/or Third Party APIs and hereby acknowledges and understands that use of or connection to the internet is inherently insecure and that connection to the internet may allow for unauthorized access by a third party.  The Licensor does not guarantee the privacy, security, authenticity, or non-corruption of the Licensee Data and/or any and all information so transmitted, or stored in any system connected to the internet except Licensor systems. Licensor shall not be responsible for any adverse consequences whatsoever of the Licensee’s connection to or use of the internet and/or Third Party APIs. Further, the Licensor shall not be responsible for any use by the Licensee or any user of Licensee’s internet connection in violation of any law, rule or regulation.

  4. System Access. The Licensee acknowledges that it is solely responsible for the administration, configuration and granting of access rights to its employees, suppliers and business partners.

  5. Privacy. The Licensee shall comply with prevailing industry privacy standards and shall furnish such written acknowledgments of compliance therewith as the Licensor may reasonably request from time to time. Further, the Licensor reserves the right to review and audit the privacy policies and procedures of the Licensee upon reasonable notice. Licensor may use Licensee Data for the limited purpose of operating, promoting, and marketing the Software or services, and for other purposes (including, but not limited to, ad technology optimization, auditing, data analysis, case studies, and research to improve our Software, services, and communications). Licensor’s use for this limited purpose shall be in accordance with applicable privacy policies and applicable law.

  6. Passwords. The Licensee shall be responsible for the assignment and maintenance of any and all End User identifications and passwords, and shall keep such information strictly confidential and remain solely and completely liable for any communications or other uses thereof or changes thereto, including in the event of a stolen or misused password. Further, the Licensee shall notify the Licensor immediately in the event of any unauthorized use of any such End User identification or password.

10. INDEMNITY.

  1. Indemnification of Licensee. The Licensor hereby indemnifies the Licensee of and from any claim of copyright or patent infringement in connection with the Licensed Product, provided that: (1) the Licensor is given prompt notice of the claim; (2) the Licensor is given immediate and complete control over the defense and/or settlement of the claim, and the Licensee fully cooperates with the Licensor in such defense and/or settlement; (3) the Licensee does not prejudice in any manner the Licensor’s conduct of such claim; and (4) the alleged infringement is not based upon the use of the Licensed Product in a manner prohibited under this Agreement, in a manner for which the Licensed Product was not designed, or in a manner not in accordance with the Specifications.

  2. Indemnification of Licensor. The Licensee hereby indemnifies the Licensor of and from any claim for (1) alleged infringement of any registered trademark, copyright or patent, arising out of the use of the Licensed Product by the Licensee in any manner prohibited by this Agreement and (2) any claim related to or arising out of a financial transaction brought by any third party in connection with the use of the Licensed Product.

11. TERM AND TERMINATION.

  1. Term and Renewal.  The initial term of this Agreement shall begin as of the period beginning as of the Execution Date during which the license for the Software is valid, and ending on the date specified in the annexed Software Licenses and Support Services Schedule(s), unless otherwise terminated as set out herein below.

  2. Renewal.  This Agreement shall be renewed automatically upon the Renewal Date for subsequent periods of the same duration as the initial term, unless either, or both parties hereto terminate the Agreement in accordance with this section or provide notice of the intention to terminate within Ninety (90) days of the Renewal Date.  All renewals may be subject to a renewal fee and may be subject to changes in License fees.

  3. Termination by Licensor.  The Licensor may terminate this Agreement and as such withdraw the license granted herein, without prejudice to any other remedy the Licensor may have, immediately without further obligation to the Licensee, in the event of (1) any material breach by the Licensee of this Agreement which cannot be remedied within five (5) business days, or such other additional time as provided by Licensor, of the Licensor’s notice to the Licensee of the breach and the Licensor’s intent to terminate the this Agreement; or (2) the Licensee’s making an assignment for the benefit of its creditors, the filing under any voluntary bankruptcy or insolvency law, under the reorganization or arrangement provisions of the Canadian Bankruptcy Act or under the provisions of any law of like import in connection with the Licensee, or the appointment of a trustee or receiver for the Licensee or its property.

  4. Termination by Licensee.  The Licensee may terminate this Agreement, without prejudice to any other remedy the Licensee may have, in the event of any material breach of this Agreement which is not remedied within five (5) business days of the Licensee’s notice to the Licensor of the breach and the Licensee’s intent to terminate the License. Termination shall not relieve the Licensee’s obligation to pay all amounts which are due and payable up to the point of termination. There shall be no repayment of fees to the Licensee.  TERMINATION SHALL NOT RELIEVE THE LICENSEE OF THEIR OBLIGATIONS REGARDING THE CONFIDENTIALITY OF THE LICENSOR’S SOFTWARE, DOCUMENTATION AND UPDATES.

  5. Cessation of Use.  Upon termination of this Agreement, the Licensee shall cease using and surrender or return, as applicable, the Licensed Product, and all other Confidential Information in its possession or control.

12. HEADINGS.  The headings used in this Agreement are for convenience only and are not intended to be used as an aid to interpretation.

13. VALIDITY.  If any part of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected.

14. BINDING AGREEMENT.  This Agreement and all Schedules attached hereto will be binding upon and inure to the benefit of the parties hereto, their respective successors and assigns. The Licensee may not assign its rights or obligations under this Agreement without the prior written consent of Licensor.

15. NO WAIVER.  Failure by either party to exercise any right or remedy under this Agreement does not signify acceptance of the event giving rise to such right or remedy.

16. SOLICITATION.  The Licensee shall not solicit the employment of, or employ any personnel affiliated with the Licensor who has been directly involved in the development, sale, activation, or support of the Licensed Product for a period of two (2) years from the later of the termination of such individual’s employment or relationship with the Licensor or the Activation Date.

17. GOVERNING LAW.  This Agreement shall be deemed to have been executed in the Province of Ontario and will be governed by and construed in accordance with the laws of the Province of Ontario. The parties hereby consent to the jurisdiction of the courts of the Province of Ontario for the purpose of any action or proceeding brought by either of them in connection with this Agreement.

18. NOTICE.  Unless otherwise agreed to by the parties, any notice required or permitted to be given or delivered under this Agreement shall be delivered to the address set forth in this Agreement. Notice shall be deemed to have been received by any party, and shall be effective: (i) on the day given, if personally delivered or if sent by confirmed facsimile transmission, receipt verified or (ii) on the third day after which such notice is deposited, if mailed by certified, first class, postage prepaid, return receipt requested mail.

19. LEGAL FEES Each party shall be responsible for their own legal fees associated with the enforcement of the terms of this Agreement or the collection of any amounts due hereunder.

20. SURVIVAL.  Sections 5, 6, 7, 8, 9 and 10 shall survive the termination of this Agreement for any reason.

21. TIME. Time is of the essence of this Agreement.

22. ENTIRE AGREEMENT.  This Agreement and its Schedules comprise the entire agreement between the parties regarding the subject matter hereof and supersedes and merges all prior proposals, understandings and all other agreements, oral and written between the parties relating to the Agreement.

Updated: September 1, 2018

SoCast Publisher Partner Agreement Terms & Conditions

This Publisher Partner Agreement (this “Agreement), is entered into as of (the Execution Date”) , by and between:

SoCast, INC. (the “Licensor”), a corporation organized and existing under the laws of the Province of Ontario, with its head office located at 410 Adelaide St. W, Suite 200, Toronto, ON, Canada, M5V 1S8

  • and -

LICENSEE (the “Licensee”).

In consideration of the mutual promises contained herein, the parties agree as follows:

  1. Definitions

“Ads” means advertising content.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, a party.

“Agreement” means this Agreement together with all Schedules in force from time to time, and includes materials that are incorporated by reference to a URL.

“Beta Feature” means any Service feature that is expressly identified as “Beta”, “Alpha”, “Experimental” or “Pre-Release” or that is otherwise expressly identified as unsupported.

“Confidential Information” means the contents of the Agreement and all information disclosed under the Agreement by one party to the other party as recipient that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential. It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.

“Licensee Data” means data derived from the use of the Services under the Agreement.

“Files” means Ads, Creative and/or other files used in the provision of the Services.

“Google Privacy Center“: at http://www.google.com/policies/privacy

“Intellectual Property Rights” means any and all rights existing from time to time under patent law, corporate law, semiconductor chip protection law, moral rights law, trade secret law, trademarks law, unfair competition law, publicity rights law, privacy rights law and any and all other proprietary rights, as well as any and all applications, renewals, extensions, restorations and reinstatements, thereof, now or hereafter in force and effect worldwide.

“Platform Guidelines” means instructions and regulations for using the Service provided by Google and/or Licensor from time to time.

“Schedule” means (a) a schedule, statement of work, order form, or addendum to this Agreement that sets out pricing and other terms with respect to a particular Service; or (b) a SOW.

“Services” means the services and products set out in each Schedule.

“SOW” means a statement of work entered into under this Agreement that sets out pricing and other terms for the provision of implementation, training and other professional services.

“System” means the Google hosted ad management system used to provide the Services.

“Tag” means code (e.g., HTML) or a web beacon (e.g., pixel tag, clear GIF) that

“Target Media” means:

  1. web-sites;

  2. consent-based email publications; and

  3. software applications.

“Visitor” or “Client” or “End User” mean end users of any Target Media.

  1. Representations And Warranties Of The Parties

2.1.  Licensee will:

2.1.1.  be liable for its acts and omissions in connection with Services provided under the Agreement;

2.1.2.  be solely responsible for all use of Services under the Agreement (including trafficking Ads and implementing Tags), all inquiries relating to Ads, and the content of all Ads.

2.1.3. obtain all necessary rights and consents, including from Target Media operators, Visitors and Clients, to enable Licensee to use the Services in accordance with the Agreement;

2.1.4.  comply with Licensee’s agreements with third parties, including Target Media owners and advertisers, as applicable, when using Services; and

2.1.5.  comply with applicable Google Platforms Program Policies available at http://support.google.com/platformspolicy (as modified from time to time, “Policies”).

2.2.  Licensee represents and warrants that it has all necessary rights and authority: (i) to enter into this Agreement and each Schedule; (ii) to perform its obligations under this Agreement and each Schedule; and (iii) to act on behalf of each of its Clients.

2.3.  Each party warrants to the other that it will use reasonable skill and care in complying with its obligations under the Agreement.

2.4.  Licensee may not resell any of the Services.

2.5.  Beta Feature. Licensee will not be obligated to participate in any Beta Test and Licensee’s use of a Beta Feature for purposes other than testing the usability and functionality of that Beta Feature will not be deemed a Beta Test with respect to that Beta Feature. Licensor will have no liability (including in respect of indemnification obligations) arising out of or related to any Beta Features.

2.6.  Licensee undertakes that the use of the System by it or by any third party shall not infringe any law or any third party right of any kind, including infringement of Intellectual Property Rights and/or privacy rights. Licensee undertakes to act in accordance with Licensor’s instructions and Google Platform Policies as provided from time to time. Licensee shall be solely responsible and liable for its use of the System and the Services, including, where applicable, choosing Target Media and advertisers, the content and trafficking of Ads (including inputting Ads and applicable campaigns criteria into the System), creating and administering Tags, handling all queries from End Users and Clients and entering into agreements with search engines.

2.7.  Use of Marks and Collection of Information. Licensee agrees that Licensor may use Licensee name and logo in presentations, marketing materials, customer lists, financial reports and website listings of customers. Licensee also agrees that Licensor may use its tags to enable third parties to collect information about the use of Licensee Site(s) through the use of cookies, web beacons and other similar technologies, including but not limited to third parties that collect statistical information in order to provide analytical services and third parties that collect non-personally identifiable information in order to provide targeted advertisements.

Pursuant to Section XII(d)(i) of the Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less – Version 3, Licensee authorizes Licensor’s repurposing of the collected data to and development of derivative products (the “Derivative Products”) using such collected data, provided that (A) no Target  will be included in Collected Data (other than (i) timestamp of visit, (ii) IP address, (iii) referring URL, (iv) device (e.g., mobile, tablet, or desktop), (v) operating system (e.g., windows, IOS, etc..), (vi) user agent string, and (B), to the extent such Collected Data is presented to third parties, such data will be presented without reference to Licensee or its Target Media (sites), other than URLs which may include Target Media. All defined terms in this paragraph shall have the meaning ascribed to them in the American Association of Advertising Agencies and Interactive Advertising Bureau Standard Terms and Conditions for Internet Advertising Media Buys One Year or Less, Version 3.0, currently available at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf .

2.8. No Guarantee. Licensor makes no guarantee regarding the level of impressions of, or clicks on any ad, the timing of delivery of such impressions and/or clicks, and the relevancy of the links or the ads shown under this Agreement. For the avoidance of doubt, there is no guarantee that this Agreement will generate any revenue for the Licensee.

  1. Payment

3.1.  Retained Revenues for Services: Subject to the terms and conditions of this Agreement, for each month during the Term and any extension thereof, Licensor shall retain 100% of the revenue recognized and attributable to Licensee's remnant inventory ad units displayed via Target Media in each such month ("Remnant Monetization Revenue"). Licensee will not knowingly or negligently, for itself, or enter into any type of arrangement with a third party where either party receives, directly or indirectly, a financial benefit in connection with the Remnant Monetization Revenue in contravention to the rights of Licensor hereunder.

3.2.  If in Licensee’s reasonable determination, there has been incentivized, computerized or otherwise deceptive, artificial, or non-human means used to increase Impressions, page views, engagement, interactions, click-throughs or any other campaign metric (“Invalid Traffic”), Licensor may terminate this Agreement immediately upon notice, and Licensee will forfeit all fees under this Agreement, including those previously paid and that may not be related to the Invalid Traffic.  Invalid Traffic may include, but is not limited to, repeated manual clicks or Impressions, use of robots, automated click and Impression generating tools, third-party services generating clicks or Impressions such as paid-to-click, paid-to-surf, auto-surf, and click-exchange programs, or any deceptive software.

  1. Data

4.1.  Licensee will own all Licensee Data; provided that Licensor and/or Google may use and disclose such Licensee Data solely:

4.1.1.  as aggregate of Service statistics, which will not include personally identifiable information or information that identifies or would reasonably be expected to identify Licensee or any of its Clients or Target Media;

4.1.2.  to provide Services and enforce its rights under the Agreement.

4.1.3.  if and as required by court order, law or governmental or regulatory agency (after, if permitted, giving reasonable notice to Licensee and using reasonable endeavors to provide Licensee with the opportunity to seek a protective order or the equivalent (at Licensee’s expense)).

4.2.  In addition to its rights under clause 4.1, Licensor and/or Google may use and disclose the results, data and feedback from any Beta Tests, for any purpose. These results, data and feedback will not include personally identifiable information or information that identifies or would reasonably be expected to identify Licensee or any of its Clients or Target Media.

4.3.  Subject to the provisions of this clause 4, the Licensee Data will be treated as Confidential Information of Licensee.

  1. Confidentiality

The recipient will not disclose the Confidential Information, except to Affiliates, subcontractors, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfil obligations under the Agreement, while using reasonable care to keep it confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser and using reasonable endeavours to provide the discloser with the opportunity to seek a protective order or the equivalent.

  1. Privacy; Export; Prohibited Acts

6.1.  Licensee will use Services under the Agreement in compliance with all applicable advertising, privacy and export laws, rules, regulations and sanctions programs.

6.2.  In addition to its obligations under clause ‎1, Licensee will ensure that each of its websites contains, and will advise in writing each of its Clients that each of their websites utilising a Service must contain, a privacy policy that:

6.2.1.  discloses:

a. the usage of third-party technology;

b. the data collection and usage resulting from the Service; and

c. that third parties may be placing and reading cookies on Visitors’ browsers, or using web beacons to collect information in the course of advertising being served on the web sites, (this clause 6.2.1 will not be deemed to require those privacy policies to expressly identify Licensor and/or Google or any Service, unless otherwise required by law, rule or regulation);

6.2.2.  includes information about Visitors’ options for cookie management; and

6.2.3.  complies with all applicable privacy laws, rules and regulations.

6.3.  In addition to its obligations under clause 2.2, Licensee will use reasonable endeavours to ensure that a Visitor is provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on the Visitor’s device where such activity occurs in connection with the Services and where providing such information and obtaining such consent is required by law.

6.4.  Notwithstanding anything to the contrary in this Agreement, Licensee will ensure that each of its Target Media that is a consent-based email publication contains, and will advise in writing each of its Clients that each of their consent-based email publications utilising a Service must contain, a conspicuous link to a privacy policy that complies with clause 6.2.

6.5.  Licensee will not, and will not assist or knowingly permit any third party to:

6.5.1.  use the Services to collect or store personally identifiable information;

6.5.2 pass information to Licensor or Google that could use or recognise as personally identifiable information;

6.5.3.  misappropriate any part of a Service;

6.5.4.  modify, disassemble, decompile, reverse engineer, copy, reproduce or create derivative works from or in respect of Services or any part of a Service (except to the extent that such prohibition is not permitted by law);

6.5.5.  damage or tamper with any part of a Service;

6.5.6.  knowingly breach any security measure; or

6.5.7.  provide to Licensor and/or Google any Ad that:

a. when viewed or clicked on by a Visitor, causes such Visitor’s computer to download any software application; or

b. is, or links to any content that is, defamatory, fraudulent, obscene, misleading or otherwise illegal.

  1. Disclaimers and Limitation of Liability

7.1.  No conditions, warranties or other terms apply to any Services or to any other goods or services supplied by Licensor and/or Google under the Agreement unless expressly set out in the Agreement. Subject to clause 7.2(b), no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).

7.2.  Nothing in the Agreement will exclude or limit either party’s liability:

7.2.1. for death or personal injury resulting from the negligence of either party or their servants, agents or employees;

7.2.2. for fraud or fraudulent misrepresentation;

7.2.3. for payment of sums properly due and owing to the other in the course of normal performance of the Agreement; or

7.2.4. for any other liability that may not otherwise lawfully be excluded or limited.

7.3.  Subject to clause ‎5, nothing in the Agreement will exclude or limit either party’s liability under clause 8.1 or 8.2 (Indemnities).

7.4.  Subject to clauses 7.2 and 7.3, neither party will be liable under or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise) for any:

7.4.1. loss of profit;

7.4.2. loss of anticipated savings;

7.4.3. loss of business opportunity;

7.4.4. loss of or corruption of data; or

7.4.5. indirect or consequential losses, suffered or incurred by the other party (whether or not those losses were within the contemplation of the parties at the date of the Agreement).

7.5.  Subject to clauses 7.2, 7.3 and 7.4, Limitation Of Liability Licensor liability, in any case and for any reason, should not exceed 30% of its revenues received by Licensee under this Agreement within the 12 months prior to the event giving rise to such liability.

  1. Indemnification

8.1.  Licensor will indemnify Licensee and any Affiliate Licensees against all damages and costs finally awarded against Licensee or any Affiliate Licensee in relation to a claim from a third party that the software and other technology used by Google to provide the Services infringes any trademark, trade secret, copyright, or patent of that third party);

8.2.  Licensee agrees to indemnify, defend and hold Licensor, Google and its agents, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively “Indemnified Person(s)“) harmless from and against any and all third party claims including a claim from a third party that the creative, technology, data or other materials provided by Licensee or Licensee’s client to Licensor and/or Google or otherwise provided and utilised by Licensee or in connection with the Services (“Licensee Materials”) infringes any trademark, trade secret, copyright, or patent of that third party, and any other liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s).

8.3.  Each party will:

8.3.1. notify the other such claim (each a “Third Party Claim”) promptly after becoming aware of it;

8.3.2. provide the other with reasonable information, assistance and cooperation in responding to and, where applicable, defending that Third Party Claim; and

8.3.3. give the other primary control over the defence and settlement of that Third Party Claim. The indemnified party may join in the defence with counsel of its choice at its own expense.

8.4.  The indemnifying party may enter into a settlement only if it: (a) involves only the payment of money damages by the indemnifying party; and (b) includes a complete release of the indemnified party. Any other settlement will be subject to the written consent of the indemnified party (not to be unreasonably withheld or delayed).

8.5.  The indemnifying party will have no obligation or liability under this clause 8 in relation to any Third Party Claim arising from:

8.5.1.  the indemnified party’s non-compliance with the Agreement;

8.5.2 (where Licensor and/or Google is the indemnifying party) infringement of any third party’s trademark, trade secret, copyright, or U.S. patent arising from the provision or use of any Licensee Materials; or

8.5.3.  (where Licensor and/or Google is the indemnifying party) the combination, operation or use by Licensee or any Affiliate Licensee of any Services with any product or service not provided by Google.

8.6.  If any Services become, or in Google’s reasonable opinion are likely to become, the subject of an intellectual property infringement claim, then Google will promptly notify Licensor and Licensor will promptly forward the notification to Licensee and, at Licensor’s sole option and expense, may: (a) procure the right to continue providing the Services as contemplated by the Agreement; (b) modify the Services to render them non-infringing (if modification does not adversely affect use of the Services); or (c) replace the Services with functionally equivalent, non-infringing services. If none of the foregoing options is commercially practicable, then each party will have the right to terminate each affected Schedule.

8.7.  This clause 8 states the parties’ entire liability and exclusive remedy with respect to infringement of a third party’s intellectual property rights.

  1. Term and Termination

9.1.  This Agreement will commence on the Effective Date and will remain in effect until all Schedules have expired or terminated, unless terminated earlier.

9.2.  Each Schedule will be in effect for the term stated in that Schedule unless: (i) terminated earlier; or (ii) automatically renewed in accordance with clause 9.3.

9.3.  If a Schedule states that it will automatically renew, then, except as stated otherwise in that Schedule, it will automatically renew for successive terms of one (1) year, unless: (i) terminated earlier; or (ii) either party gives the other written notice that it does not wish to renew at least sixty (60) days before the date on which the Schedule is due to renew.

9.4.  Either party may suspend performance or terminate a Schedule, with immediate effect, if the other party is in material breach of this Agreement (which includes any breach by Licensee of clauses ‎1.5 or ‎6.5.5 to ‎6.5.7) or the applicable Schedule where the breach is:

9.4.1.  incapable of remedy; or

9.4.2.  capable of remedy and fails to remedy the breach within thirty (30) days after receiving written notice of the breach.

9.5.  Either party may suspend performance or terminate this Agreement (and all Schedules) with immediate effect, if:

9.5.1.  the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration, receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on business; or

9.5.2.  any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.

9.6.  Licensor may suspend performance or terminate this Agreement (and all Schedules) with immediate effect if:

9.6.1.   Licensee is not in compliance with applicable export and re-export control laws and regulations ; or

9.6.2.  Licensee has violated or caused Google to violate any Anti-Bribery Laws, or that such a violation is reasonably likely to occur.

9.7.  Licensor may suspend the provision and use of any Services on seven (7) days’ notice to Licensee, if Licensee fails to pay Fees invoiced by Licensor for those Services (other than Fees disputed in good faith) within ten (10) days following the relevant due date.

9.8.  Licensor may (at its sole discretion) suspend the provision of any Services or modify any Services to comply with any applicable law. If any suspension under this clause ‎9 continues for more than thirty (30) days, Licensee may, at any time until use of the applicable Services is reinstated, terminate the applicable Schedule.

9.9.  Notwithstanding termination of the Agreement, any provisions of the Agreement that by their nature are intended to survive, will survive termination.

9.10.  Upon termination of the Agreement, Licensee will erase all Tags produced by the System and sent to Target Media by Licensee. If the System continues to receive requests for Ads, by Tags, that should have been removed, as stated above, Licensee must pay to Licensor all related fees, as if the Agreement has not been terminated.

9.11.  Notwithstanding anything stated in any other section of this Agreement, Licensor may terminate the Agreement before the term of this Agreement and any Schedule, in the event of discontinuation in the relationship, material change in business model, material change in any product, feature or resale term between Licensor and Google. In such event Licensor will not be obligated to pay any compensation to Licensee.

10.  Parties Addresses

All notices hereunder shall be sent to the respective party’s address stated in the Agreement Schedules.

11.  Governing Law

This Agreement and any dispute concerning this Agreement, its subject matter, formation or breach thereof (a “Dispute”) shall be governed by the laws of Canada and the jurisdiction to hear any Dispute shall reside solely with the courts of Ontario, Canada. Notwithstanding the above, in any proceeding in which a claim is filed against the Licensor by Google as a result of any action or omission of the Licensee, the Licensor shall have the right, and the Licensee hereby consents, to add the Licensee as a defendant to any such proceeding between the Licensor and Google.

12.  Assignment

Licensee may not assign, pledge or transfer in any other way any of its rights or obligations under the Agreement without the prior written consent of the Licensor. However, the Licensor shall have the right to assign its rights and obligations under this Agreement to any third party upon providing the Licensee with ninety (90) days prior written notice and provided that any such transfer does not have an adverse material effect on the Licensee.

13.  Miscellaneous

13.1.  Any amendment to this Agreement shall be valid only if it is set out in writing and signed by both parties. The Agreement sets out all terms agreed between the parties in relation to its subject matter and supersedes all previous agreements between the parties relating to the same.

13.2.  Failure or delay in exercising any right or remedy under this Agreement shall not constitute a waiver of such (or any other) right or remedy, unless any such waiver is clearly set forth in writing and signed by both parties.

13.3.  Any URL(s) refers to a website in that URL or any other relevant website which may be provided by Licensor and/or Google;

13.4.  Unless otherwise stated in this Agreement, any communication between the parties shall  be in writing, to include email.

13.5.  Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

13.6.  No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under the Agreement.

13.7.  No Agency. The Agreement does not create any agency, partnership or joint venture between the parties.

13.8.  No Third Party Beneficiaries. The Agreement does not confer any benefits on any third party unless it expressly states that it does.

13.9.  The parties may execute this Agreement and any Schedule in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.

13.10.  Any amendment must be in writing (which includes by click and accept) and expressly state that it is amending the Agreement.

13.11.  Conflicting Terms. If there is a conflict between any term of this Agreement and a term of a Schedule, the term of the Schedule will govern. If in relation to a particular Service there is a conflict between Schedules, the Schedule relating to that particular Service will govern.

.

Updated: January 29, 2019

SoCast Ad Creative Design Terms and Conditions

You wish to engage SoCast to provide you with Ad Creative Design services (“Services”), and SoCast agrees to provide those Services, in accordance with the terms and conditions set out below (“Terms”).

These Terms may be updated from time to time without notice.

You acknowledge and agree that you have read and understand the Terms, and you agree to be bound by them.

  1. Terms and conditions

  1. All Services are provided subject to these terms and conditions, which (together with the SOW) sets out the entire understanding and agreement between us.

  1. Fees and costs

  1. In consideration for us providing the Services, you must pay all fees, charges and costs set out in the SOW.

  2. If you require any Services that are not contained in the original SOW, or if there are elements of the Services which require additional time, material or resources to be provided by us, including if there is a request for changes or further Services after approval of a deliverable, then we will advise you of the additional Services and additional fees required before providing you with the additional Services.

  1. Payment

  1. Payment for Services must be paid in full prior to commencement.

  2. If you have requested a SOW for our Services, then this will be provided to you together with our invoice.

  3. Our Services will only commence after payment is received. However if we do commence work prior to receiving payment, this does not in any way prejudice our right to seek payment.

  1. Timing

  1. We will use reasonable commercial endeavours to deliver the Services in accordance with any agreed timeframes, but we do not guarantee any timing estimates and we will not be in breach of our obligations if we fail to meet any such timelines.

  1. Intellectual Property Rights

  1. You acknowledge and agree that all Intellectual Property Rights in all creation files, working files, artwork and other documents provided by us in connection with the Services vests in us on its creation. For the avoidance of doubt, this does not include your Background IP or any licences (such as image licences).

  2. Upon full payment of our fees, we will assign to you all Intellectual Property Rights in the project, except in relation to any of our Background IP. In such case we have a perpetual, irrevocable licence to use the relevant project Intellectual Property Rights unless agreed otherwise in writing. For the avoidance of doubt, Intellectual Property Rights that we have agreed to transfer to you do not include any licences (such as image licences) or other Intellectual Property Rights that we are not able to assign.

  3. Each party retains ownership of its Background IP and grants to the other party a non-exclusive, royalty-free licence as follows:

    1. for us, to the extent necessary to enable us to provide the services, exercise our rights in accordance with the provisions of these terms and conditions and otherwise carry out our obligations under these terms and conditions, and

    2. for you only for the purpose and scope of the project, unless otherwise agreed in writing.

  4. We may purchase rights to images that we use in providing the Services to you. Such images may be subject to a licence agreement between us and a third party that may restrict your use of those images. Please ask us if you would like to be given a copy of the terms of any such licence. Unless otherwise agreed in writing, we may at our discretion use images that have been used in providing the services to you, with other clients or on other works. If you require specific images, you may be required to pay additional fee(s) for that use. Even if we agree to provide an image to you exclusively, we cannot guarantee that the image will not be used by other third parties who may have obtained these images from another party.

  5. We reserve the right to display all designs that we create for you on our website and our marketing material.

  1. Warranties and liability

  1. You warrant that all work and materials provided by you (including your Background IP) will be free and clear of all liens and encumbrances and may be lawfully used by us without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright trade secret patent or trade mark rights of any third party.

  2. You acknowledge that you have not relied on any advice, representation or warranty given by us in connection with the services that is not expressly stated in this document.

  3. To the extent permitted by law, all warranties, conditions and representations by us are excluded. If a term is implied by law into this document and the law prohibits provisions in a contract excluding or modifying liability under that term, then it will be included this document. However, our liability for breach of such term will be limited, at our option, to one or more of the following:

    1. the supply of the services again; or

    2. the payment of the cost of having the services supplied again.

  4. If you are not happy with our services, to the extent permitted by law we will not provide you with a refund, but supply you with the services again within reason, until you are satisfied with the services,
    To the extent permitted by law, neither we nor any of our officers, employees, agents or related bodies corporate will be responsible or liable in any way (including for negligence) for any loss, damage, liability or costs incurred or sustained by you or claims made against you, and you agree not to make any claim against us, due to or arising out of our provision of the services.

  5. Without limitation, we will under no circumstances be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity.

  6. You indemnify and hold us harmless in respect of any and all claims, loss or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of:
    any act done by us in good faith and purportedly pursuant to a right granted to us under the provisions of this document
    any infringement by you of third-party Intellectual Property Rights, and/or
    any breach by you of any of the terms of this document.

  7. We do not guarantee that our services will provide any specific results. In particular, and without limiting the foregoing, we make no guarantees, warranties or representations as to sales or revenue that may be achieved or that you will receive any new or increased numbers or customers as a result of our services.

  1. Confidentiality

  1. “Confidential Information” means all material or information of a confidential nature, received or acquired by SoCast or its customers or created either partly or in whole by SoCasts designers during the course of this agreement, relating to the Services and products, including software products, or general business operations of SoCast and its customers. Such information or material may include, but is not limited to:

    1. technical information: methods, processes, systems, techniques, products, services, computer programs and research projects;

    2. business information: customer lists, pricing data, sources of supply, financial data and marketing, production, business proposals, plans, production plans and schedules, and

    3. iii. creative development: concept development, names, titles, images, illustrations, logos, motion graphics, designs, computer data and production of all media associated with any project

  2. SoCast agrees to treat all Confidential Information as being strictly confidential, and hold it in the strictest confidence, at all times during and after termination of this agreement, and that this requirement is reasonable to protect the Confidential Information of SoCast and its clients.

  3. SoCast agrees not to disclose, or cause or allow to be disclosed, Confidential Information to any person, except:

    1. if required to do so by law, although SoCast must notify the client immediately upon becoming aware that it will be required to disclose any Confidential Information in accordance with this clause;

    2. with SoCast’s express prior written consent,

    3. iii. to SoCast’s agents, employees, or advisers as a necessary part of the proper performance of SoCasts duties and only to the extent necessary to properly carry out those duties.

  4. SoCast agrees that we will not use the Confidential Information, or cause or allow the Confidential Information to be used:

    1. for our own benefit or advantage

    2. for the benefit or advantage of any person except SoCast, or

    3. iii. to the detriment of SoCast or any related entities or SoCast’s customers.

  5. SoCast must not make any copy or summary of any Confidential Information, except if required to do so in the course of the provision of the Services.

  6. SoCast acknowledges and agrees that all Confidential Information is and will at all times remain the exclusive property of its customers, as the case may be.

  7. SoCast acknowledges and accepts that SoCast may be required to enter into separate confidentiality agreement with customers of SoCast.

  8. The obligations above do not apply to any Confidential Information which is in the public domain other than due to a breach of an obligation of confidence (whether or not under this agreement).

  1. Termination

  1. This agreement terminates six (6) months from the date that we commence providing the services.

  2. If the provision of our services is postponed or terminated by you, we will retain the development designs for six months from the date that we commence providing the services. After that date, if you wish to retain our services again to continue with the provision of the previous services, we will provide you with a new Quote.

  3. We reserve the right to suspend services immediately at any time and without liability if you fail to perform your obligations under this document, including failing to make payments to us by a due date.

  4. If you breach any term or condition of this document and fail to remedy such breach within 14 days of you receiving written notification from us indicating the breach and requiring its remedy then we may at our discretion treat this document as terminated, in which case we will retain the Intellectual Property Rights in the services even if we had previously agreed to assign it.

  5. Termination due to a breach of this document by you does not in any way prejudice any of our rights including our right to receive payment for services rendered.

  1. Non-Solicitation

  1. You must not during the term of this document, or for a period of 6 months following completion of any project that we undertake for you:

    1. employ, contract or hire the services of any of our personnel, or

    2. induce or attempt to induce any of our personnel to terminate their agreements or contracts with us.

10. General

  1. All notices and consents required or permitted to be given under this document must be in writing and given by personal service, pre-paid postage, a facsimile transmission, or email transmission at the addresses of the parties set out in this document or to such other address as either party may designate to the other by written notice.

  2. Neither this document nor any rights or obligations of this document may be assigned or otherwise transferred by either party without the prior written permission of the other.

  3. If we do not act in relation to a breach by you of this document, this does not waive our right to act with respect to that or subsequent or similar breaches.

  4. Nothing stated in this document constitutes you and us as partners, or creates the relationship of employer and employee, master and servant or principal and agent between the parties. Neither party shall have authority to make any statements, representations or commitments of any kind, or to take any action which shall be binding on the other party, except as expressly provided in this document or authorised in writing.

  5. If any provision of this document should be held to be invalid in any way or unenforceable, the remaining provisions must not in any way be effected or impaired. This document must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.

  6. These terms and conditions are governed by and to be interpreted according to the laws of Ontario, Canada.

Updated: August 2, 2019

SoCast Ads - Ad Extension Terms and Conditions

These Terms and Conditions (the “ Terms and Conditions ”) form part of and are incorporated by reference to the License Agreement entered into between SoCast Inc. (“ SoCast ”), an Ontario corporation with offices at 410 Adelaide St. West, Suite 200, Toronto, ON M5V 1S8 Canada, and the Licensee specified in the applicable Licensee Contract to which these Terms and Conditions are attached. SoCast reserves the right to update and change these Terms and Conditions from time to time and will provide written notice to Licensee of any changes that would impact this agreement. Use of the Platform (as defined below) by Licensee following such update/change means that Licensee has accepted the updated/revised Terms and Conditions.

  1. DEFINITIONS

    For the purposes of this Agreement, in addition to the capitalized words and phrases defined in the Licensee Contract and within the body of these Terms and Conditions, the following words and phrases have the following meanings:

    1. Ad” means any digital advertisement (including, without limitation, all logos, trademarks, creative materials, graphic images and copy therein) provided to Socast, directly or indirectly, by Licensee, including without limitation banner advertisements, text advertisements and video advertisements (as such terms are understood in the online advertising industry) and advertisements received from Contracted Clients.

    2. Ad Inventory Supplier ” shall mean any source where Ad Inventory can be purchased.

    3. Ad Inventory ” shall mean any digital advertising inventory made available for sale through an Ad Inventory Supplier, including, but not limited to, web display, mobile, application and/or widget-based advertising inventory.

    4. Agreement ” means the Licensee Contract and these Terms and Conditions, and any other written addenda executed by the parties and incorporated by reference hereto.

    5. Auction ” means the real-time bidding process for Ad Inventory offered through Ad Inventory Suppliers.

    6. Business Day ” means a day other than a Saturday, a Sunday, or any other day on which the principal chartered banks located in Toronto, Ontario are not open for business.

    7. Campaign ” means the advertisement campaign to be operated by Licensee through the Platform.

    8. “CCOST” means the Exchange cost of the Ad Inventory paid to the Ad Inventory Supplier.

    9. Dynamic Campaign ” means that Socast will invoice Licensee on a monthly basis for all Ad Inventory purchased by Licensee pursuant to a Campaign, plus a percentage as set forth in the Platform.

    10. Exchange ” means the buying and clearing engine forming part of the Platform that is owned by Socast or its’ Providers and that purchases display space for Ads from Publishers’ digital media properties or from various Publishers’ digital media properties through an Ad Inventory Supplier and handles the auction logistics.

    11. Exchange Rate ” means the noon exchange rate between the Canadian dollar and the US dollar published by the Bank of Canada for the relevant date.

    12. Intellectual Property Rights ” means any and all vested, contingent and future rights, in any jurisdiction, provided under: (a) patent law; (b) copyright law (including moral rights); (c) trade-mark law (including laws governing trade-marks, trade names and logos); (d) design patent or industrial design law; (e) semi-conductor chip or mask work law; or (f) any other statutory provision (including laws governing domain names) or common law principle (including trade secret law and law relating to information of the same or similar nature and protected in the same or similar way) governing intellectual property, whether registered or unregistered, and including rights in any and all applications and registrations in respect of the foregoing and all rights of action, powers and benefits relating thereto, including the right to bring proceedings and claim or recover damages or other remedies in relation to any infringement.

    13. Licensee ” shall mean the Licensee set forth in the Licensee Contract and shall, for purposes of Licensee’s obligations under these Terms and Conditions, include any Contracted Client. The obligations of Licensee and a Contracted Client under this Agreement shall be joint and several.

    14. “Margin %” means the percentage earned by Socast for the acquisition and sale of the Ad Inventory, and represents the fees paid by the Ad Inventory Supplier for the acquisition of said Ad Inventory.

    15. MCOST ” means the media cost or margin cost, which is the amount billed to Licensee which includes: the Exchange cost (CCOST), and if applicable, any Licensee Fees as agreed to in this Licensee contract and/or any 3rd Party Data costs (with no added margin/fees).

      1. MCOST Calculation:

        MCOST = (CCOST / 1 – Margin %) + (Licensee Fee and/or 3rd Party Data Costs, if applicable)

    16. Platform ” means the machine learning advertising platform developed and owned by Socast or its Providers.

    17. Publisher ” means an entity that displays an Ad on one of its digital media properties.

    18. “Provider” means an entity that is in partnership or association with Socast to provide all or any services required under the terms of this Agreement.

    19. “Revenue” means the amount paid to the Licensee by Exchange.

    20. Services ” means any services provided by Socast or its Providers under this Agreement.

    21. “Socast” means Socast or where applicable includes any or all of its Providers.

    22. Term ” means the period of time during which this Agreement is in effect, as set out in the Agreement.

  2. LICENSE

    1. Socast hereby grants to Licensee a limited, non-exclusive, non-transferable license to use the Platform for the Term in accordance with this Agreement for the purposes of conducting Campaigns occurring during the Term. Nothing in this Agreement grants, nor shall Licensee acquire hereby, any right, title or interest in or to the Platform or any goodwill associated with the Platform, other than those rights of use expressly granted hereunder. Upon the expiry or termination of this Agreement for any reason, all rights to use the Platform granted to Licensee hereunder shall automatically terminate and revert to Socast, and Licensee shall have no further rights to use the Platform.

    2. Socast will provide Licensee with one session of Platform and on-boarding sales training as well as support via virtual phone and web conferencing, or in person training and support in the sole discretion of Socast. The first training will be free of charge to Licensee, subject to the confirmed attendance by key Licensee sales stakeholders. If Licensee requests follow-up in person or virtual training, or where attendance by key Licensee sales stakeholders was not confirmed, then Licensee will reimburse Socast for all reasonable out of pocket expenses, plus applicable taxes. Such costs for training, follow-up training, or support will be confirmed by Socast via quote, and due upon receipt of invoice.

    3. Licensee’s use of the Platform shall at all times comply with all applicable laws, rules, regulations and ordinances as well as any written policies or procedures that Socast may provide to Licensee from time to time in connection with Licensee’s use of the Platform. Licensee acknowledges and agrees that Socast may suspend or terminate Licensee’s access to the Exchange or any Ad Exchange at any time if Socast receives notification that Licensee is in violation of the terms of use of the Exchange or Ad Exchange.

    4. Socast reserves the right to monitor the Platform and Licensee’s use of the Platform from time to time in its sole discretion. Licensee agrees to notify Socast immediately of any unauthorized use of Licensee’s password or account or any other known or suspected breach of security occurring through Licensee’s password or account. Licensee shall report to Socast immediately and shall co-operate with Socast to stop any unauthorized copying or distribution of Platform content by third parties who have gained access through Licensee’s password or account. Licensee acknowledges and agrees that Socast may suspend or terminate Licensee’s access to the Exchange or any Ad Exchange at any time if Socast receives notification that Licensee is in violation of the terms of use of the Exchange or Ad Exchange

  3. RELATIONSHIP OF THE PARTIES

    1. The parties to this Agreement are independent contractors and no agency, partnership, joint venture or employer-employee relationship is intended or created hereby. If Licensee is entering into this Agreement on behalf of a third party, such third party shall not have any rights under this Agreement.

  4. LICENSEE OBLIGATIONS

    1. Licensee hereby grants to Socast and each Publisher a worldwide, fully paid up, royalty free, non-transferable, non-exclusive right and license for the Term to use the Ads (and any trademarks, trade names, service marks, copyrights, URLs or other proprietary rights of Licensee therein) in connection with the Campaign and in connection with Socast’s operation and provision of access to the Platform to Licensee.

    2. Licensee represents and warrants to and covenants with Socast that each Ad (and any and all content therein) and the distribution thereof in accordance with this Agreement:

      1. 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);

      2. does not infringe the Intellectual Property Rights, rights of publicity, rights of privacy, moral rights, music performance or other music-related rights, or any other right of any third party;

      3. 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;

      4. is true, accurate and complete;

      5. is not unlawful, defamatory or libelous;

      6. is not pornographic or obscene;

      7. does not contain viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines; and

      8. does not generate fraudulent or otherwise invalid impressions, clicks or conversions or re-directs. A re-direct that sends a user to landing page other than what is specified on the bid request will be deemed as a violation of this agreement. Licensee must abide by creative size and format restriction imposed by the Ad Exchanges and agrees to enter true and correct vendor attributes for all Ad creatives as required by the Ad Exchange including video initiation, advertiser category and all associated pixels.

    3. Licensee further represents and warrants to and covenants with Socast that:

      1. to delivery to Socast of each Ad, Licensee, and not Socast, shall obtain all licenses, consents, releases, waivers and rights (including, without limitation, all Intellectual Property Rights) from third parties that are necessary for the grant and exploitation by Socast, the Publishers and Ad Inventory Suppliers, of the rights and licenses granted to Socast, the Publishers and Ad Inventory Suppliers in the Ads pursuant to this Agreement, and that Licensee is authorized to grant to Socast, the Publishers and Ad Inventory Suppliers the benefit of all such licenses, consents, releases, waivers and right, without restriction, to the fullest extent necessary to use the Ads  in accordance with this Agreement. Socast reserves, in its sole and absolute discretion, the right (but not the obligation) to: (i) review any Ads used by Licensee through the Platform prior to Use; and/or (ii) to reject or refuse to serve any Ad that is, in its sole and absolute discretion, objectionable or which, in Socast’s sole and absolute opinion, may expose Socast, any Publisher, any Ad Inventory Suppliers, or any of its suppliers and each of their affiliates, or its other clients to any harm or liability of any type;

      2. Licensee has or have paid, or has or have caused to be paid or will pay or cause to be paid to the proper person, firm or corporation, all residual, re-use or similar payments, all step-up fees, all fees or royalties for the use of music (including but not limited to any and all fees or royalties for synchronization, reproduction, public performance, or communication to the public by telecommunication), and all license payments and all other amounts payable to third parties as a result of, or in connection with creation of the Ads and their Use hereunder, all as and when due and payable, and that in no event will Socast be liable to make any such payments to any third party in relation to the Use of music; and

      3. Licensee represents and warrants that it is and will remain in compliance with the Digital Advertising Alliance’s (“ DAA ”) Self-Regulatory Principles for Online Behavioral Advertising (“ DAA OBA Principles ”) and the Canadian Self-Regulatory Principles for Online Behavioral Advertising (“ DAAC OBA Principles ”), including the provision of appropriate notice and choice of online behavioral advertising. Licensee represents and warrants that any websites where data is collected for online behavioral advertising provides users notice that third parties will collect data for purposes of serving targeted ads and provide a link to a means by which users may opt out of such targeted ads, such as aboutads.info or http://youradchoices.ca/choices.

      4. Minimum Sales Targets. Licensee agrees to meet certain minimum sales targets during the Term (each a "Minimum Sales Target") as follows:

        1. During the first Ninety (90) Days of the Agreement, Licensee agrees to a Minimum Sales Target to be defined and mutually agreed upon by the Licensee and Socast in writing within Ten (10) days of the execution of the Agreement (the "First Quarter Minimum Target"). In the event Licensee meets the First Quarter Minimum Target, this Agreement shall continue in full force and effect for the first year of the Term. Thereafter, the parties shall in good faith negotiate with respect to the establishment of a Minimum Sales Target for the remainder of the year, and each such successive year during the Term, provided, however, that any such Minimum Sales Targets shall be subject to the mutual agreement of the parties. Notwithstanding any of the foregoing, SoCast may, in its sole discretion, terminate this Agreement at any time in any year of the Term if the parties fail to agree on a Minimum Sales Target for such year, or the Licensee fails to meet the Minimum Sales Target.

  5. BILLING TYPE AND PAYMENT

    1. Licensee agrees that it shall pay to Socast, without set-off, abatement or deduction, all amounts owing to Socast in accordance with the Billing Type selected by Licensee in the Platform for a Campaign. In the event that there are discrepancies between the amounts charged by Publishers and/or Ad Inventory Suppliers for the distribution and/or display of Ads and Socast’s records of such amounts, Socast reserves the right to adjust the amounts charged to Licensee to reflect the amounts charged by the Publishers and/or Ad Inventory Suppliers for such Ads to Socast. Licensee agrees that the amounts charged by the Publishers and/or Ad Inventory Suppliers are final.

    2. Socast will invoice Licensee monthly. Unless otherwise stated in the Agreement, Licensee shall remit payment to the Socast within thirty (30) days of receipt of the applicable invoice. All late payments shall bear interest at the rate of 1% per month (being 12% per annum), or the highest rate allowable by law, whichever is lower. Licensee agrees that it shall be solely liable for payment to Socast of all amounts owing pursuant to the terms hereof, and (if Licensee is an agency or intermediary) it shall make all necessary payments hereunder, notwithstanding any non-payment to Licensee by any third party or Contracted Client.

    3. Any Insertion Order submitted by Licensee incorporates by reference and is subject to the terms and conditions located at https://www.socastdigital.com/terms . All capitalized terms used but not otherwise defined in any Insertion Order have the meaning given to them in the Terms and Conditions. In the event of any conflict of the terms of any Insertion Order and the Terms an Conditions, the provisions of the Insertion Order shall govern. Advertiser/ Licensee shall fulfill payment obligations in accordance with the Billing Instruction included in the Insertion Order, in addition to all payment obligations under any License Agreements Advertiser/Licensee maintains with Socast Inc. as a Licensee. In the event Socast Inc. does not receive from Advertiser all payments owed pursuant to all payment obligations under all Agreements with Licensor within 30 days of the payment due date, the sum of all of the remaining amounts will be due immediately. Advertiser campaigns and/or services may be subject to suspension for non-payment, including any penalties, interest or taxes. By digitally signing any Insertion Order (to include activating a web-based checkbox, or entry of initials), Advertiser / Licensee hereby accepts all terms herein, and each Advertiser Rep warrants full authority to sign on behalf of and to legally bind the Advertiser / Licensee.

  6. TERM AND TERMINATION

    1. The Term of this Agreement shall be as stated in the Agreement, unless earlier terminated by either party in accordance with the terms hereof. On expiry of the Term, this Agreement shall automatically renew for successive one (1) year periods thereafter unless either party provides written notice not less than thirty (30) days prior to the end of the Term or the then-current renewal period, as applicable, that it does not wish to renew this Agreement.

    2. Either party may terminate this Agreement for any reason or for no reason upon 30 days prior written notice. If at any time Socast terminates this Agreement pursuant to this Section 6.2, if Licensee has pre-paid any fees, Socast shall, without further liability to Licensee, refund to Licensee unspent portion of such fees, less any fees and other amounts properly due and owing to Socast.

    3. This Agreement may be terminated immediately by either party, except as otherwise provided for in this Agreement, if the other party defaults in the performance of any of its material obligations, hereunder and such default remains unremedied (if capable of being remedied) for a period of thirty (30) days after the defaulting party’s receipt of such written notice thereof.

    4. Socast may terminate this Agreement:

      1. if Licensee is in default of any of its payment obligations under this Agreement and such default remains unremedied for a period of seven (20) days after Licensee has received written notice thereof; and

      2. This Agreement is deemed terminated if Licensee becomes bankrupt, insolvent, makes a proposal or arrangement with its creditors, or has a receiver, administrator, administrative receiver appointed, or other encumbrancer takes 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.

      3. Licensee remains responsible and liable for all fees and any other amounts due and owing through to the effective date of termination or expiry of this Agreement. Upon any termination or expiry of this Agreement: (i) Licensee shall immediately discontinue use of the Platform, and all rights granted by Socast to Licensee under this Agreement shall cease; (ii) Licensee shall promptly pay to Socast all amounts properly due and owing to Socast hereunder through to the effective date of termination or expiry; and (iii) each party shall return to the other or destroy all of the other party’s Confidential Information in its possession or control.

  7. DISCLAIMER OF WARRANTIES

    1. All Socast or its providers IP (including the platform) and any services provided by Socast hereunder and any access to and use of any ad inventory suppliers and publisher’s properties provided under this Agreement are provided "as is" and Socast hereby expressly disclaims all warranties, whether express, statutory or implied, regarding the services, the socast ip (including the platform), any ad inventory suppliers and any publisher’s properties or any portions 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, Socast specifically disclaims, and makes no representations or warranties: (1) regarding the number of persons who will view or access the ads; (2) regarding any benefit licensee or any contracted client might obtain from the platform, the services or a campaign; (3) that the platform or the services will increase sales, goodwill or achieve a specific result; or (4) that the Licensee’s measurable goals will be achieved or achieved within the Licensee’s budget.

    2. With respect to: the Socast or its providers IP (including the platform), any ad exchange with which the platform may exchange information, any publisher’s properties, or the services, or any combination of any of the foregoing, socast does not warrant that: (a) they will be available at all times or at any given time; (b) they will be available from any particular location; (c) they will be secure or error-free; (d) that defects will be corrected; or (e) that they are free of viruses or other potentially harmful components. no advice or information, whether oral or written, obtained from Socast shall create any warranty not expressly stated in this Agreement.

    3. Licensee further acknowledges and agrees: (1) that the use of the Socast IP (including the platform) and performance of the services are contingent upon successful performance and operation of the internet, publishers’ websites, ad inventory suppliers and auctions and, accordingly, socast shall not be responsible for any failures, delays or damages direct or indirect caused by the malfunctioning or default of same that are reasonably beyond the control of Socast; and (2) all numbers and amounts contained in the platform relating to impressions, actions, acquisitions or applications are estimates only and are not guaranteed by Socast. Socast shall follow a uniform policy to avoid discrimination in its dealings with licensee and agencies. Although Socast makes every effort to uphold the highest standards of online marketing conduct, it will not be liable to licensee for any losses or damages incurred by licensee or a contracted client as a result of licensee’s or a contracted client’s actions or omissions.

  8. LIMITATIONS ON LIABILITY

    1. Neither party nor its affiliates or suppliers will be liable to the other party or any third party, under any theory of law, for any special, indirect, moral, incidental, punitive, exemplary or consequential damages, including, but not limited to loss of revenue, loss of profits, loss of use, 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 licensee and Socast. the rights and licenses granted by Socast hereunder would not be provided without such limitations.

    2. Each party’s maximum aggregate liability to the other party and/or any third parties for any causes of action whatsoever, and regardless of the form or cause of action, will be the fees paid to Socast by Licensee under this agreement in the six (6) months prior to the event giving rise to a claim or cause of action. notwithstanding anything to the contrary contained herein.

    3. The limitations of liability in this Agreement do not apply to Licensee’s obligations to pay for any fees when due, Licensee’s misappropriation or infringement of Socast’s or its Providers intellectual property or either party’s obligation to indemnify the other party for third party intellectual property claims pursuant to Section 12 of this Agreement.

    4. The limitations in this section apply regardless of the form or source of the claim, whether the claim was foreseeable, and whether a party has been advised of the possibility of the claim.

  9. OWNERSHIP

    1. Licensee acknowledges and agrees that the Platform, its structure, organization and all software (in object code and source code form), technology, know-how, information, data, content, and other property provided, created, developed or licensed by Socast or its Providers in connection with the Platform (collectively, “Socast IP”) is confidential and proprietary to Socast and constitute valuable trade secrets of Socast and its licensors. Except as otherwise expressly permitted by this Agreement, Licensee shall not at any time do or suffer to be done any act or thing that will in any way impair the rights of Socast or its licensors in and to the Socast IP.

    2. Licensee acknowledges and agrees that all Intellectual Property Rights in the Socast IP provided or otherwise utilized in connection with this Agreement remain the property of Socast and Licensee shall have no right or interest in the Socast IP other than as expressly set forth in this Agreement and that this Agreement shall not be construed as granting Licensee 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 Socast IP to Licensee or to any other third party.

    3. Licensee agrees that it shall not, and shall not permit a third party, during the Term of this Agreement or thereafter, directly or indirectly, to:

      1. copy, modify, adapt, alter, decompile, translate, disassemble, modify, reverse-compile or decompile, reverse engineer, redistribute, attempt to derive the source code from, make any derivative use of, create derivative works from or translate the Socast IP, or any part thereof, or any interest therein, without the express written consent of Socast;

      2. disclose, furnish, distribute, sell, rent, lease, lend, loan, sublicense, give or permit access to, or transfer the right to use the Platform to any third party without Socast’s prior written consent;

      3. remove, alter, or obscure any proprietary notices (including copyright notices) of Socast or its licensors incorporated within the Platform;

      4. falsify identity information to gain access to or use the Platform;

      5. provide services to third parties using the Platform other than to Contracted Clients as described in this Agreement; or

      6. use the Socast IP:

        1. for any illegal purpose or in a manner that violates any applicable law or regulation; or

        2. in a manner that infringes the rights of any third party, including without limitation, Intellectual Property Rights or any privacy, publicity or contractual rights.

  10. PUBLICITY AND CONTENT DISTRIBUTION

    1. Licensee agrees that part of the consideration being provided to Socast pursuant to this Agreement is the right for Socast to cite Licensee from time to time on the Socast website, in presentations, speeches, press releases and other media as a client of Socast with prior approval from Licensee.

  11. CONFIDENTIALITY

    1. As used herein, “Confidential Information” means: (a) either party’s proprietary information that has not been publicly disclosed; (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 to 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 11 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 11 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: (i) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (ii) became publicly known through no wrongful act of the Receiving Party; (iii) was rightfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (iv) was disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.

  12. INDEMNIFICATION

    1. Licensee agrees to indemnify, defend and hold harmless Socast, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense after final verdict asserted by any third party due to, arising from, or in connection with: (a) claims that any Ad supplied or used by Licensee hereunder infringes the rights of such third party; (b) any failure by Licensee to pay the applicable royalties and obtain the necessary rights for Socast and each Publisher and Ad Exchange to Use any Ad; and/or (c) Licensee's breach of this Agreement and/or (d) the negligence, willful misconduct or fraudulent activities of Licensee and any Contracted Client.

    2. Socast agrees to indemnify, defend and hold harmless Licensee, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense after final verdict asserted by any third party due to, arising from, or in connection with: (a) claims that the Platform infringes the rights of such third party; (b) any failure by Socast to remit the applicable fees to Ad Exchanges and Publishers, as applicable; (c) Socast's breach of this Agreement and/or (d) the negligence, willful misconduct or fraudulent activities of Socast.

  13. NON-SOLICITATION

    1. During the Term of this Agreement and for a period of one (1) year following the termination or expiry of this Agreement, neither party shall solicit, seek out or employ, either directly or indirectly (as a consultant, independent contractor or otherwise) any employee or consultant engaged by either party who is or was associated with the performance of either party’s obligations pursuant to this Agreement, except without the prior written consent of the other party.

  14. GENERAL PROVISIONS

    1. Interpretation

      The headings used in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation. References in this Agreement to articles, sections, schedules, exhibits, appendices, and other subdivisions are to those parts of this Agreement. Unless the context requires otherwise, words importing the singular number include the plural and vice versa; words importing gender include all genders. In this Agreement, a period of days begins on the first day after the event that began the period and ends at 5:00 p.m. Eastern Time on the last day of the period. If any period of time is to expire, or any action or event is to occur, on a day that is not a Business Day, the period expires, or the action or event is considered to occur, at 5:00 p.m. Eastern Time on the next Business Day.

    2. Currency and Foreign Exchange

      All references in this Agreement to dollars, unless otherwise specifically indicated, are expressed in CDN dollars.

    3. 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 14.4, 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.

    4. Dispute Resolution

      1. 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 be conducted on a confidential basis and shall take place in Toronto, Ontario, in English, and in accordance with the ADRIC Arbitration Rules of the ADR Institute of Canada, Inc. In all other respects the arbitration shall be governed by and subject to the Arbitration Act, 1991 (Ontario).

      2. Unless otherwise required by law, Advertiser must notify Socast within one (1) year of the date of the occurrence of the event or facts giving rise to a dispute or Licensee waives the right to pursue any claim based on such event, facts or dispute.

      3. 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. Licensee 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 any basis involving disputes brought in a purported representative capacity on behalf of the general public.

    5. Assignment/Enurement

      Neither Socast nor Licensee may assign this Agreement without prior written consent from the other party, which consent shall not be unreasonably withheld or delayed. Subject to the foregoing, the terms of this Agreement will be fully binding upon, enure to the benefit of and be enforceable by, the parties’ respective successors and permitted assigns.

    6. Severability

      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.

    7. 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 Agreement, including all approved amendments, are incorporated into and a part of this Agreement.

    8. Waiver

      The failure of Socast 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.

    9. Remedies Cumulative

      The rights, remedies, and powers provided to a party under this Agreement are cumulative and in addition to, and are not exclusive of or in substitution for, any rights, remedies, and powers otherwise available to that party.

    10. Force Majeure

      Neither Socast nor any of its Providers or suppliers shall be liable to Licensee 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 Socast or any of its suppliers.

    11. Survival

      If Socast terminates this Agreement for any reason, all rights and obligations under this Agreement shall cease, save for Licensee’s obligation to pay all fees property due and owing to Socast hereunder to the date of termination. In addition, the following provisions of this Agreement survive expiry or any termination: Sections 1, 4.2, 4.4, 6.6, and 7 to 14, inclusive, and such other provisions hereof of thereof which expressly, or by their nature are intended to, survive termination or expiry of this Agreement.

    12. Entire Agreement

      This Agreement sets forth the entire understanding and agreement of the parties with respect to its subject matter 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 Socast and Socast 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.

    13. Notices

      Licensee shall promptly notify Socast in the event it: (i) becomes subject to any bankruptcy or insolvency proceedings; (ii) has a dispute with Socast; or (iii) otherwise is required to provide notice to Socast hereunder. Licensee shall deliver any and all notices required to be delivered to Socast hereunder by Mail Notification (as defined below) to the address set forth above, Attn: Accounting. Licensee hereby acknowledges and agrees that Socast may deliver any notice required to be delivered to Licensee either by means of posting such notice to Socast’s website located at www.socastdigital.com (“Web Notification”) by email to the email address of Licensee indicated in the Agreement (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address of Licensee (“Mail Notification”). Any such notification shall be deemed effective: (i) in the event of Web Notification, on the earlier of the date the Licensee next visits Socast’s website or thirty (30) days from the date such Web Notification is posted on Socast’s website; (ii) upon transmission when delivered by Email Notification; or (iii) when delivered by Mail Notification.

Updated: February 20, 2020

SoCast Premium Feeds - Premium Feeds Terms and Conditions

Licensor provides SoCast Premium Feeds to Licensee as a licensed “Third-Party Solution” powered by United Stations Radio Networks (“USRN”). As Licensor is not in control of development, functionality or content sourced via Third-Party Solution, Licensee acknowledges and agrees that Licensor does not provide any warranty for the Third-Party solution and does not agree to be held liable for any harm Licensee experiences in relation to the use of the Third-Party Solution. For clarity, in no event shall the Licensor be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of Licensee’s use of or inability to use Third Party Solution, even if the Licensee has been advised of the possibility of such damages. In no event will the Licensor be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. The Licensor shall have no liability with respect to the content of Third Party Solution or any part thereof, including but not limited to errors or omissions contained therein, libel, infringement of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. The only warranty or coverage of any type available to Licensee is that specifically offered or provided by USRN. The Licensee must also comply with the following terms governing the use of Third Party Solution, which are hereby incorporated by reference: http://www.pulsewebcontent.com/terms.htm .


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