Last Updated: 2023-07-20
These Terms of Service (“Terms of Service”) describe the terms and conditions under which you may access and use the Services provided by Mrge Americas, Inc., a Canadian corporation with offices at Suite 1700, Park Place 666 Burrard Street, Vancouver, BC, V6C 2X8 (“SourceKnowledge”, “we”, “us”, or “our”) for the purchase and placement of Advertising (the “Program”). “Advertiser”, “you” or “your” means the person executing these Terms of Service, and the legal entity they represent (if any), who is engaged in facilitating the purchase of Advertising through the Services, including any ad network, ad exchange, demand-side platform, agency trading desk, ad agency, direct ecommerce website, or any provider of goods or services advertised and representative thereof.
IMPORTANT: BY AGREEING TO THIS AGREEMENT, YOU AGREE TO RESOLVE DISPUTES WITH SOURCEKNOWLEDGE THROUGH BINDING ARBITRATION (AND, WITH VERY LIMITED EXCEPTIONS, NOT IN COURT) AND ON AN INDIVIDUAL BASIS.
Please note that these Terms of Service do not govern the relationship between SourceKnowledge and Publishers. Such relationship shall be subject to a separate agreement located here.
WHEREAS, SourceKnowledge desires to provide, and Advertiser desires to utilize, SourceKnowledge’s Services for the fulfillment of placement of Advertising on third party websites.
“Account” means your Advertiser account for this Program created following acceptance of your account application.
“Ad” or “Advertising” or “Advertising Content” means a commercial notice, announcement, message made or any other type of advertising material or content, in any format and however delivered, together with related code and other material used for the placement and display of such material or content in a public medium to customers or prospective customers to promote a person, entity, brand, product, service, or event.
“Advertiser Content” means all logos, trademarks, images, graphics, text, and other materials included by Advertiser in the Ads provided to SourceKnowledge for use with the Services.
“Ad Inventory” means any media space on a Site made available for purchase by Publishers through the Services for the display of Advertising.
“Agreement” means, collectively: (i) these Terms of Service, (ii) any Insertion Order entered into by Advertiser and SourceKnowledge by any legally binding method of forming a contract together with any exhibits, schedules or appendices attached thereto or incorporated by reference, and (iii) any amendments to any of the foregoing agreed upon in writing or otherwise issued by SourceKnowledge.
“Applicable Data Protection Laws” means any and all privacy and data protection laws, rules and regulations, together with self-regulatory industry codes and principles, applicable to the parties’ performance under this Agreement.
“Campaign Data” means performance and measurement data made available by SourceKnowledge through the Platform that relates to Advertising Content launched through the Services.
“Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Services or Technology that are provided by SourceKnowledge to Advertiser.
“Insertion Order” means an order form, schedule, or other document (including an online registration page or online order form) entered into or accepted by Advertiser and SourceKnowledge that sets forth one or more Service(s) being provided by SourceKnowledge to Advertiser and specific terms applicable to each such Service.
“Intellectual Property Rights” means patents, trademarks, service marks, trade names, design rights, copyrights, database rights, trade secrets, rights in know-how and other intellectual property rights, of whatever nature and wherever arising, whether registered or unregistered and including applications for the registration or grant of any such rights.
“Invalid Means” means any clicks or impressions that may artificially inflate an Advertiser’s costs or a Publisher’s earnings, including intentionally fraudulent traffic as well as accidental clicks. Examples of “Invalid Means” includes without limitation: (a) clicks or impressions generated by Publishers clicking on their own live ads, (b) repeated ad clicks or impressions generated by one or more Users, (c) Publishers encouraging clicks on their ads (such as language included to encourage Users to click on Ads or implementations that may cause a high volume of accidental clicks, and (d) use of automated clicking tools or traffic sources, robots or other deceptive software.
“Personal Data” means any information that would allow the identification of a particular natural person, or other information that is classified as “personally identifiable information” (or similar categorization), as determined in accordance with laws or regulations in any applicable jurisdiction.
“Platform” means the SourceKnowledge website, dashboard, and tools that Advertiser has access to through the Services to create, launch, monitor, pause, and stop an Ad campaign and submit Advertising Content.
“Platform Policies” means, collectively: (i) any specifications, technical documentation, or integration requirements made accessible to Advertiser by SourceKnowledge in connection with the Technology; and (ii) requirements, prohibitions, and guidelines applicable to Advertiser’s integration with or use of the Services imposed by SourceKnowledge or a third party, as updated from time to time; in each case which may deal with or respond to, among other things, changes in laws or regulations, industry or technology developments, emerging risks, or evolution of the Services or Project Materials, and which are made available to Advertiser via the Services or otherwise made known to Advertiser.
“Prohibited Content” means any content or material that: (i) violates any applicable law, rule or regulation; (ii) promotes violence, discrimination, hatred, peer-to-peer applications, networks or sites, copyright protection circumvention, or unlawful subject matter or activities; (iii) violates any Intellectual Property Right or other proprietary, privacy, contract or legal right of any third party; or (iv) is defamatory, libelous, deceptive, pornographic or sexually explicit.
“Project Materials” means the Service(s) and the Technology.
“Publisher” means the entity or individual that controls a Site or makes available Ad Inventory through the SourceKnowledge Services for purchase by Advertisers.
“Services” means each SourceKnowledge product, platform or service provided or made accessible to Advertiser, including without limitation the Platform, in accordance with an Insertion Order.
“Technology” means any proprietary or confidential technology or materials of SourceKnowledge: (i) made accessible to Advertiser or (ii) made accessible to third parties and/or affiliates by Advertiser or at Advertiser’s request in accordance with and as permitted by the terms of the Agreement, including any ad tag, programming code, software development kit (“SDK”), or application programming interface (“API”), used to effect or facilitate a provided Service.
“User” means any natural person that is a visitor to, or other end-User of, any website, portal, device, application, or other online service or the means (e.g., computer, mobile telephone, or browser) used by such natural person or other end-User to visit, access, or use any such website, portal, device, application, or other online service.
“User Data” means information that is specific to or attributable to a User, which may include location, device identifier, and other data collected via a Site or the Ads on the Site that is received by Advertiser through its participation in the Services.
1.1 SourceKnowledge License Grant. Advertiser may choose to receive any combination of Services available by indicating the same through the Platform or, if applicable, in an Insertion Order. Subject to Advertiser’s payment and the terms set forth in this Agreement, SourceKnowledge grants the following limited, worldwide, non-exclusive, non-transferable rights and licenses without the right of sublicense, to Advertiser during the Term: (i) for applicable Services, to access and use the Platform and Documentation solely for Advertiser’s internal business purposes, and solely on Advertiser’s own behalf, in connection with its receipt of the Services; (ii) for web related Services, to integrate the pixel (or other script or code) into Advertiser’s website for web-related Services; (iii) for mobile related Services, to integrate the SDK (in object code form) into Advertiser’s mobile and tablet applications for mobile-related Services, or (iv) to integrate through other mutually agreed upon means (e.g., integration using the SourceKnowledge API).
1.2 Advertiser License Grant. During the Term, Advertiser grants SourceKnowledge a worldwide, royalty-free, non-transferable (except as necessary for SourceKnowledge to provide the Services) license to use, distribute, reproduce, adapt (with respect to sizing or as specifically requested by Advertiser), publicly perform, and publicly display, the Advertiser Content in Ads on the Sites or otherwise in connection with the Services and in promotional materials related to the Services.
1.3 Requirements. Advertiser will comply with all requirements for use of the Services communicated by SourceKnowledge to Advertiser via Documentation, and acknowledges that absent such compliance, SourceKnowledge may be unable to provide the Services to Advertiser. SourceKnowledge will have no liability to Advertiser for failing to provide the Services, if failure is a result of Advertiser’s inability to comply with this section.
1.4 Modifications. SourceKnowledge will host the Services and may update the Services, Documentation and Platform Policies (“Modifications”) from time to time in accordance with this Agreement. If SourceKnowledge provides Services updates to Advertiser that require action on Advertiser’s part, Advertiser will integrate the updates within 30 days. SourceKnowledge will provide notice to Advertiser of material changes in accordance with Section 11.8 below. If Advertiser does not wish to continue to use the Services after any such Modifications, Advertiser’s sole remedy is to terminate the Agreement by providing written notice to SourceKnowledge in accordance with Section 11.8 below.
1.5 Display of Ads. Advertiser can request to work with SourceKnowledge (including within the Platform where such functionality is available) to manage display preferences when and to the extent such controls are made available by SourceKnowledge. Advertiser acknowledges that SourceKnowledge cannot control where and how often Ads will be displayed on any Site. For instance, Ads may be displayed next to ads of Advertiser’s competitors, or on Sites that are undesirable to Advertiser. SourceKnowledge will use commercially reasonable efforts not to display Ads on Sites that it determines to be pornographic, defamatory, obscene, or illegal in nature. If Advertiser notifies SourceKnowledge in writing that Ads are being displayed in this manner, SourceKnowledge will use commercially reasonable efforts to prevent Ads from continuing to display in this manner. Advertiser Content must comply with Documentation requirements or SourceKnowledge may be unable to provide the Services with respect to such Advertiser Content.
1.6 Third Party Terms. Certain parts of the Services require the creation of a User account with third parties to provide their products or services on the SourceKnowledge Platform. Advertiser is responsible for reviewing any applicable terms before participating in any part of the Services to which such terms apply. Advertiser agrees that SourceKnowledge may accept certain third-party terms and conditions as agent on Advertiser’s behalf where necessary for SourceKnowledge to perform Services requested by Advertiser.
- ACCOUNT AND CAMPAIGN SETUP
2.1 Account Set Up. Setting up an Account with SourceKnowledge is free of charge. Advertiser will choose login credentials, including a password, for its Account and is responsible for all activities that occur through its Account or with its credentials. Advertiser will use reasonable measures to secure its Account credentials and will promptly notify SourceKnowledge of any breach of security, misuse, or unauthorized use of its Account or credentials.
2.2 Campaign Set Up and Management. Advertiser will use the Platform to manage its receipt of Services, specifically to set goals and other details, and to review performance. Charges incurred because of changes made using Advertiser’s account will be included in Advertiser’s regular bill or invoice. In addition to SourceKnowledge’s optimization Services and features, SourceKnowledge may offer managed account Services to Advertiser. SourceKnowledge will use commercially reasonable efforts to comply with the budget specified by Advertiser.
2.3 Campaign Measurement and Tracking. Unless expressly agreed to in writing by SourceKnowledge, spend or conversions will be based either on a mutually agreed to third party tracking software or SourceKnowledge’s own measurements and tracking through its servers using the number of acquisition targets, clicks and other indicators necessary for calculating the fees payable by Advertiser. Advertiser may access these measurements through the Platform.
2.4 Auto-Payment Accounts. For auto payment accounts, you agree to keep valid payment method information (for example, credit card or PayPal account information) on file in your Account at all times. You authorize SourceKnowledge to charge recurring amounts due when your billing threshold is met using the valid payment details provided by You. SourceKnowledge reserves the right to discontinue the auto payment services at any time for any reason upon notice. Claims relating to Account charges must be raised by you within 30 days of receipt or will be barred. If your Account has incurred spend, but has not met its threshold billing requirement, SourceKnowledge will charge your card equal to the amount owing after 30 days.
2.5 Insertion Order Accounts. SourceKnowledge may, in its sole discretion, allow Advertiser to submit an Insertion Order requesting Services. SourceKnowledge reserves the right to request a prepayment from Advertiser at any time. SourceKnowledge will send Advertiser a monthly invoice via email reflecting the amount owed by Advertiser to SourceKnowledge. Advertiser will pay the amount set out in each invoice, without set-off, within 30 days of its receipt of such invoice. SourceKnowledge may charge interest on overdue amounts, from the due date up to the date of actual payment in full, whether before or after any judgment, at a monthly rate of 1.5%, or the highest rate permitted by applicable law, whichever is less. Advertiser will reimburse SourceKnowledge for expenses and recovery costs incurred in collecting any past due amounts, including reasonable attorneys’ fees. Claims relating to invoices or Account charges must be raised by Advertiser within 30 days of receipt or will be barred.
2.6 General Payment Terms. You agree that you have all necessary right, power, and authority to authorize each such payment. For certain payment methods, the issuer of your payment method may charge you a foreign transaction fee or other charges. Check with your payment method service provider for details. If you develop credit conditions (e.g., excessive credit card denials, chargebacks, return-to-maker payments due to insufficient funds, or increased risk of insolvency) or SourceKnowledge otherwise designates you as a credit risk, SourceKnowledge reserves the right to require prepayment. You agree to maintain sufficient funds or credit availability in your payment method to satisfy your amounts due and that SourceKnowledge will have no obligation to provide the Services if sufficient funds are not available at the time your payment is submitted, and we reserve the right to suspend your Ads and use of the Services due to failed payments or insufficient balance.
2.7 Currency and Taxes. All payments to SourceKnowledge will be made in United States Dollars or the Canadian Dollar, unless otherwise agreed to in an Insertion Order or offered through the Platform. Payments are quoted exclusive of any taxes. Advertiser is responsible for all sales taxes, use taxes, value added taxes, withholding taxes, and any other similar taxes imposed by federal, state local or foreign governmental entities on the transactions contemplated by this Agreement, excluding taxes based solely upon SourceKnowledge’s net income.
- OBLIGATIONS OF THE PARTIES
3.1 SourceKnowledge Obligations. SourceKnowledge will maintain throughout the term of the Agreement all software codes and tags necessary for Advertiser to serve the Advertising in accordance with the Services. SourceKnowledge is the sole and exclusive owner of all right, title and interest in and to the Technology. Advertiser shall not use the Technology except pursuant to the limited rights expressly granted and as specifically set forth in this Agreement. SourceKnowledge shall make the Services accessible to Advertiser pursuant to the Agreement and, unless otherwise stated in the applicable Insertion Order, provide Advertiser with access to applicable Project Materials. Advertiser acknowledges that SourceKnowledge may utilize one or more of its affiliates, as appropriate, to fulfill its obligations under this Agreement.
3.2 Advertiser Obligations.
(a) Registration Obligations. Advertiser shall: (a) provide true, accurate, current, and complete information as prompted by the Services or otherwise requested by SourceKnowledge in establishing an Account for accessing the Service (such information, the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. In order to provide the Service, SourceKnowledge may transfer certain Registration Data, or may process certain Registration Data, in the United States, Canada, or other locations, and Advertiser consents to any such transfer or processing.
(b) Platform Policies. Advertiser shall conform to the Platform Policies.
(c) Prohibited Activities. Advertiser shall not do any of the following (each a “Prohibited Activity”): (i) provide or deliver or perpetuate through the Services any malicious code or other malware or viruses via Ads or otherwise; or (ii) generate impressions, clicks, displays, views, conversions or any other actions that are tracked and may serve as a basis for payment or analysis (collectively “Reported Actions”) with respect to any Ad through any Invalid Means, or otherwise deploy or facilitate Invalid Means in its use of the Services. In addition, if Advertiser uses a third party’s technology or materials in connection with Advertiser’s activities under the Agreement, Advertiser will not violate any agreements, conditions or terms of usage imposed by such third party on Advertiser related to the use of such third party’s technology or materials.
(d) U.S. Directed – Kids Sites. Advertiser shall notify SourceKnowledge prior to making Advertising Content available that (1) is directed to children under the age of 13; or (2) collects information from Users known by the Advertiser to be under the age of 13. Advertiser may not, except to the extent permitted by applicable law, (i) create profiles of Users of under the age of 13, (ii) purchase, sell, place or facilitate the placement of behaviorally targeted Ads targeted to kids under the age of 13, or (iii) knowingly collect Personal Data about Users under the age of 13. Without limiting the foregoing, Advertiser’s Ads and use of the Services must be in compliance with the United States’ Children’s Online Privacy Protection Act (“COPPA”). SourceKnowledge undertakes no obligation to monitor COPPA compliance by Advertiser. Nothing in this Section shall be construed as limiting Advertiser’s obligation to comply with any other applicable laws, rules or regulations related to minors.
3.3 Mutual Obligations.
(a) Each party shall (i) comply with all laws, rules and regulations applicable to it in performing its respective obligations and exercising its rights under the Agreement, including those Applicable Data Protection Laws that are applicable to such party, and (ii) use commercially reasonable efforts and cooperate with the other to detect, limit, prevent, and prohibit Prohibited Activities by third parties.
(c) Each party must have and maintain its own process to manage data subject access requests, including any opt-outs for the sale of Personal Data and any requests for deletion of Personal Data that are required by Applicable Data Protection Laws. In the event either party receives a data subject access request, the receiving party will respond as required by Applicable Data Protection Laws, but will notify the other party if and to the extent such receiving party reasonably determines that the receiving party is required to do so under Applicable Data Protection Laws.
- PROPRIETARY RIGHTS
4.1 Right to Access and Restrictions. Advertiser may access and use the Project Materials solely for the purposes of use and performance of obligations under the Agreement, and solely in accordance with applicable Platform Policies. Advertiser shall not: (a) resell, license, lease, time-share or otherwise transfer or distribute any of the Project Materials; (b) reverse engineer, decompile or dissemble the Project Materials (except to the extent expressly permitted by applicable law); (c) modify, copy or create derivative works of the Project Materials, except that Advertiser may modify and create derivative works of a SourceKnowledge SDK to the extent necessary to achieve the objectives contemplated by the applicable Insertion Order (e.g., serving an Ad in a mobile application); or (d) use the Project Materials to build a competitive product or service. Advertiser may not transfer or provide access to any Project Materials to any third party except that Advertiser may transfer, provide access or request that SourceKnowledge provide access to the Project Materials to Advertiser’s authorized representatives to facilitate Advertiser’s use of the Services, provided that (i) Advertiser is responsible for any acts or omissions of such authorized representatives, and (ii) Advertiser shall cause such authorized representatives to handle such Project Materials in accordance with the same requirements and restrictions applicable to Advertiser. SourceKnowledge reserves all rights not expressly granted hereunder.
4.2 Marks. To the extent Advertiser chooses to buy Ad Inventory through the Service on a non-blind basis, Advertiser hereby grants to SourceKnowledge a non-exclusive, non-transferable (other than to a successor in interest in connection with a merger, reorganization or sale of all or substantially all assets or equity) right and license to use, reproduce and display Advertiser’s name, logo, service marks, trademarks and related brand features (“Marks”) on or within the User interface for the Service, including as made available to third parties (including but not limited to Publishers and/or their representatives). SourceKnowledge’s use of Advertiser’s Marks will be in compliance with any reasonable written usage guidelines provided to SourceKnowledge by Advertiser in advance.
4.3 Ownership. As between the parties, SourceKnowledge shall own and retain all right, title and interest in and to the Project Materials and SourceKnowledge’s Confidential Information, together with all Intellectual Property Rights therein and thereto. As between the parties, Advertiser shall own and retain all right, title and interest in and to: (i) the Ads, (ii) Advertiser’s Marks, and (iii) Advertiser’s Confidential Information. Advertiser may, in its sole discretion, provide SourceKnowledge with suggestions or other feedback regarding any Project Materials, which SourceKnowledge may freely incorporate into the Project Materials or otherwise use in its discretion, without payment of any royalty or any duty to account to Advertiser.
- CONFIDENTIAL INFORMATION
(a) As used herein, “Confidential Information” means all material or information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated or identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure. Confidential Information includes business and marketing plans, software code, technology and technical information, product and system designs and configurations, specifications, APIs, trade secrets and business processes. The terms and conditions (including pricing) of each Insertion Order are Confidential Information of each party. Project Materials are the Confidential Information of SourceKnowledge.
(b) However, notwithstanding the foregoing, Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without restriction on use or disclosure; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is rightfully received from a third party without restriction on use or disclosure.
(c) Receiving Party shall not use the Confidential Information of Disclosing Party for any purpose other than to perform Receiving Party’s obligations or exercise its rights under the Agreement. In addition, Receiving Party shall not disclose the Confidential Information of Disclosing Party to any third party, except with Disclosing Party’s prior written consent or as otherwise required by law or legal process, and except that Receiving Party may disclose the Confidential Information of the Disclosing Party to Receiving Party’s employees, consultants or other representatives who have a bona fide need to know such Confidential Information to support the Receiving Party’s exercise of its rights or performance of its obligations under the Agreement and who are bound by confidentiality obligations with respect to such Confidential Information at least as protective as those set forth herein, provided that Receiving Party shall be responsible and liable for failure by any party to which it discloses Disclosing Party’s Confidential Information to treat that information in accordance with Receiving Party’s obligations. Receiving Party shall protect the confidentiality of Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party’s Confidential Information.
(d) If Receiving Party is compelled by law or legal process to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to contest the disclosure. If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 5.0, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies may be inadequate.
(e) Upon termination or expiration of the Agreement, Receiving Party shall, upon request, return to the Disclosing Party or destroy (at the Disclosing Party’s election) all materials containing such Confidential Information.
- TERM AND TERMINATION
6.1 Term. The Agreement will continue in effect until terminated as permitted hereunder. Each Insertion Order has the term specified therein. Termination of any individual Insertion Order shall not affect any other Insertion Order in effect between the parties at the time of such termination.
6.2 Termination/Suspension. SourceKnowledge may suspend or terminate this Agreement and/or any Insertion Order upon notice to Advertiser, with or without cause. Advertiser may terminate (a) the Agreement upon 30 days prior written notice if there are no Insertion Orders in effect between the parties; (b) an Insertion Order for breach if SourceKnowledge does not cure a breach hereof within 30 days of receipt of written notice specifying such breach; or (c) any Ad on twenty-four (24) hours’ prior written notice.
In the event that Advertiser has made an Ad prepayment and SourceKnowledge discovers that Advertiser has violated SourceKnowledge’s Platform Policies by using a non-standard URL that surreptitiously redirects Users to a landing page that (1) does not match the landing page content originally submitted for distribution through the Service or (2) is not otherwise in compliance with SourceKnowledge’s Platform Policies as a result of “cloaking” or other techniques that hide the true destination landing page that a User is directed to from Advertiser’s URLs, SourceKnowledge shall be entitled to either charge the remaining amount of Advertiser’s spend to the credit card maintained on file or retain any Ad prepayments made, in which case, SourceKnowledge will not refund any such funds, in addition to any other remedies available to it in law or equity. For clarity, SourceKnowledge shall be entitled to retain the prepayment and will not refund any such funds in the event of such breach by Advertiser.
- REPRESENTATIONS AND WARRANTIES; DISCLAIMER
7.1 Mutual Representations and Warranties
Advertiser and SourceKnowledge each represent and warrant to the other that: (a) it has the full corporate right, power, and authority to enter into the Agreement and to exercise its rights and perform its obligations; and (b) its execution and delivery of the Agreement, and the performance of its obligations and duties in connection therewith, do not and will not violate any agreement to which it is bound.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED HEREIN, NEITHER PARTY MAKES, AND EACH PARTY EXPRESSLY DISCLAIMS, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SUBJECT MATTER OF THE AGREEMENT, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF ACCESS, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE ABOVE, SOURCEKNOWLEDGE MAKES NO REPRESENTATION OR WARRANTY AS TO ANY BENEFIT OR REVENUES THAT ADVERTISER (OR ADVERTISER’S OWN CUSTOMERS OR USERS) WILL OBTAIN FROM ITS USE OF THE SERVICE, AND SOURCEKNOWLEDGE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ALWAYS AVAILABLE OR ERROR-FREE. FURTHERMORE, SOURCEKNOWLEDGE PROVIDES NO WARRANTY, REPRESENTATION, OR GUARANTEE THAT ADVERTISER’S USE OF THE SERVICES OR ACCESS TO THE PLATFORM OR ANY USER DATA MADE AVAILABLE VIA THE SAME COMPLIES WITH ANY APPLICABLE DATA PROTECTION LAWS. ADVERTISER IS SOLELY RESPONSIBLE FOR ITS OWN LEGAL COMPLIANCE AND ENSURING THAT ITS USE OF THE SERVICES AND PLATFORM IS SUFFICIENT FOR ADVERTISER TO MEET ITS LEGAL OBLIGATIONS.
- DATA PROTECTION AND PRIVACY
8.1 Application of Data Protection Law. The parties acknowledge that some or all of the Campaign Data may qualify as, or include, Personal Data and that Applicable Data Protection Laws may apply to the processing of the Campaign Data. Where this is the case, each party shall comply with such Applicable Data Protection Laws with respect to its processing of the Campaign Data.
8.2 Relationship of the Parties. In no event shall the parties process the Campaign Data as joint controllers. Each party shall be individually responsible for its own compliance with Applicable Data Protection Laws, including for providing any transparency and obtaining any consents for the processing of Campaign Data that may be required under Applicable Data Protection Laws.
8.3 Purpose Limitation. Each party agrees that it shall process the Campaign Data that it collects only for the purposes permitted by this Agreement and Applicable Data Protection Law.
8.4 Security. Each party shall implement and maintain appropriate technical and organizational measures to protect the Campaign Data from (i) accidental or unlawful destruction and (ii) loss, alteration, unauthorized disclosure of, or access to the Campaign Data that is in such party’s possession or custody throughout the term of the Agreement.
8.5 Retention. Advertiser acknowledges that SourceKnowledge is not the system of record for Campaign Data such that SourceKnowledge shall have the right to delete Advertiser Campaign Data in accordance with SourceKnowledge’s data retention policies.
8.6 Audits. SourceKnowledge agrees to reasonably assist Advertiser in performing any audits if and to the extent such audit is required by Applicable Data Protection Laws no more than once per calendar year unless otherwise dictated by Applicable Data Protection Law. Advertiser will give SourceKnowledge at least thirty (30) days’ advance written notice prior to conducting any such audit and to the extent feasible such audit will be scheduled to occur at a time mutually agreed by the parties. Advertiser will conduct any such audit at its own cost during regular business hours and without unreasonable disruption to SourceKnowledge’s operations. In any event, any such audit will not require SourceKnowledge to provide any Advertiser with access to the confidential information of SourceKnowledge’s other customers or information of SourceKnowledge not applicable to the performance of the Services for Advertiser.
8.7 Subcontractors. Advertiser authorizes SourceKnowledge to engage subcontractors in order to perform the Services and provide the Platform, which may include the processing of User Data and Campaign Data, which may include Personal Data, provided that SourceKnowledge: (a) complies with the Applicable Data Protection Laws; (b) ensures any such subcontractor is bound by contractual terms at least as protective and stringent as those of this Agreement; and (c) will remain responsible for the performance of any Services by any subcontractor. SourceKnowledge will disclose such subcontractors to Advertiser upon request and if Advertiser has any objection to any such subcontractor the parties will work in good faith to resolve such issue. Should such resolution prove impossible or impracticable, Advertiser may terminate this Agreement, which is Advertiser’s sole and exclusive remedy and SourceKnowledge’s sole and exclusive obligation.
9.1 Advertiser Indemnification. Advertiser shall indemnify, defend and hold harmless SourceKnowledge, its permitted successors and assigns, and their respective agents, officers, directors and employees (collectively, “SourceKnowledge Indemnified Parties”) as well as Publishers from and against any claims, suits, legal, regulatory or investigatory proceedings (“Claims”) brought against any SourceKnowledge Indemnified Party or Publisher by a third party and any all judgments, losses, damages, settlements, liabilities, fines, penalties, costs and expenses (including reasonable attorneys’ fees and court costs) (“Losses”) arising as a result of any such Claim, in each case as a result of or in connection with: (a) Advertiser’s breach of the Agreement, including representations or warranties, or Advertiser’s obligations to any third party; (b) a claim that Advertiser’s Marks, Advertiser Content, or Ads, when used in accordance with the terms of the Agreement, infringe any Intellectual Property Right of any third party or slanders, defames, or libels any person or entity, or does not comply with any applicable law or regulation; (c) Advertiser’s provision or delivery of any Prohibited Content through the Service or the inclusion of any Prohibited Content in any Ads purchased, placed, or sold by Advertiser in connection with this Agreement; or (d) any actual or alleged violation of a third party’s privacy right or any actual or alleged violation of Applicable Data Protection Laws. The acts described in items (a)–(d) above are referred to herein as “Advertiser Indemnifiable Acts.”
9.2 SourceKnowledge Indemnification. Except for that which Advertiser indemnifies SourceKnowledge, SourceKnowledge shall indemnify, defend and hold harmless Advertiser and its agents, officers, directors and employees (collectively, the “Advertiser Indemnified Parties”) from and against any Claims brought against any Advertiser Indemnified Party by a third party and any Losses arising as a result of any such Claim, in each case as a result of or in connection with: (i) SourceKnowledge’s breach of any of SourceKnowledge’s representations or warranties set forth in Section 7 or (ii) a claim that the Platform violates a third party’s valid U.S. or Canadian trademark, trade secret or copyright, except to the extent that such claim arises out of the combination of the Platform with Advertiser Content, Ads or the content on Advertiser’s landing page.
9.3 Process. The parties agree that in seeking any indemnification hereunder, the party seeking indemnification (the “Claimant”) shall (i) promptly notify the other party (the “Indemnifying Party”) in writing of the claim triggering the indemnification being sought; (ii) grant the Indemnifying Party sole control of the defense (except that the Claimant may, at its own expense, assist in the defense); and (iii) provide the Indemnifying Party, at the Indemnifying Party’s expense, with all assistance, information, and authority reasonably required for the defense of the claim. Failure of the Claimant to promptly notify the Indemnifying Party shall only relieve Indemnifying Party of its obligation to the extent it can demonstrate material prejudice from such failure. In no event shall the Indemnifying Party enter into any settlement or agree to any disposition of the indemnified claim(s) without the prior written consent of the Claimant, which consent shall not be unreasonably withheld or delayed. In addition, any legal counsel sought to be appointed to defend the indemnified claim(s) shall be subject to the prior written consent of the Claimant, such consent not to be unreasonably withheld or delayed.
- LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS OR SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF THE AGREEMENT EXCEED $250,000. THE ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
THE LIMITATIONS ON LIABILITY SHALL NOT APPLY TO: (A) A BREACH OF CONFIDENTIALITY; (B) A CLAIM FOR INDEMNIFICATION (C) THE GROSS NEGLIGENCE; WILLFUL OR INTENTIONAL MISCONDUCT, OR DISHONEST, FRAUDULENT, CRIMINAL OR MALICIOUS CONDUCT OF THE PARTY SEEKING TO LIMIT ITS DAMAGES; OR (D) AMOUNTS PAYABLE TO SOURCEKNOWLEDGE UNDER AN ORDER FORM.
11.1 Assignment. Advertiser may not assign the Agreement or any Insertion Order, including without limitation, by operation of law or merger, without SourceKnowledge’s prior written approval, and any attempt to assign the Agreement or any Insertion Order without such prior written approval is void.
11.2 Governing Law; Venue. The Agreement will be governed and interpreted in accordance with the laws of Province of Quebec, Canada, without reference to conflict of laws principles. Jurisdiction and venue for all disputes hereunder shall be exclusive in the courts with jurisdiction in the Province of Quebec, Canada. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
11.3 Non-Exclusive Relationship; No Minimums. Except as otherwise expressly agreed in this Agreement, this Agreement is non-exclusive and either party may engage in similar or other relationships, agreements, or arrangements with any other party. Except as agreed in an Insertion Order, neither party promises any level of business or outcomes to the other.
11.4 Independent Relationship of the Parties. The relationship between Advertiser and SourceKnowledge (and its personnel or agents) in connection with the Agreement is at all times that of an independent contractor and neither party is an employee, partner, agent, trustee, or joint venturer of, for, or with the other. Neither party shall owe any fiduciary or, except to the extent otherwise provided herein or under applicable law, other duties to the other.
11.5 Interpretations. Headings and captions are for convenience only and do not affect the meaning or interpretation of the Agreement. Ambiguities, inconsistencies, or conflicts in the Agreement will not be strictly construed against either party but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time the Agreement is entered into and common practice in the industry. The term “including” or “includes” means “including/includes without limitation.” This Agreement shall not be construed against any party by reason of its drafting, preparation or means of acceptance.
11.6 Notices. All notices under the Agreement must be made in writing. Notices to Advertiser may be made in the Platform, or by e-mail to the address listed in your Account contact information, express courier, or certified mail. Notices to SourceKnowledge may be made by e-mail to email@example.com, express courier, or certified mail. Notice will be effective on receipt.
11.7 Advice of Counsel. Each party acknowledges that such party has had the opportunity to seek the advice of independent legal counsel and has read and understood all of the terms and provisions of this Agreement.
11.8 Modifications. SourceKnowledge will provide Advertiser with written notice via email or the applicable Service user interface of any material Modifications. If Advertiser determines in its reasonable discretion that a Modification will have a material, adverse effect on Advertiser, then for a period of ten (10) business days after the date of notice by SourceKnowledge (the “Termination Window”), Advertiser may, as its sole and exclusive remedy for any Modification, terminate the Agreement upon written notice to SourceKnowledge. By continuing to access or use the Services or any Technology after such Termination Window, Advertiser agrees to such Modifications.
11.9 General. The Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, understandings, and communications, oral or written, between the parties related to such subject matter. The Agreement shall prevail over any additional or conflicting terms that appear in any purchase order, invoice or other document furnished by Advertiser to SourceKnowledge. In the event of any conflict or inconsistency between provisions or components of the Agreement, each as may be amended, the Insertion Order(s) shall take precedence over these Terms of Service. No failure of either party to enforce any of its rights under the Agreement will act as a waiver of such rights. Any provision of the Agreement that is held by a court of competent jurisdiction to be unenforceable shall be modified to the minimum extent necessary to make such provision enforceable and to best preserve the parties’ intent, provided that if such modification would materially alter the effect of the provision, then the provision shall be considered void, and the remaining provisions of the Agreement shall be enforceable in accordance with their terms. Pursuant to any applicable laws, rules, or regulations, including without limitation the US Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes, ADVERTISER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS. Further, Advertiser hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by means other than electronic means.
11.10 Force Majeure. Neither Advertiser nor SourceKnowledge will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labor disputes. If Advertiser’s ability to transfer funds to third parties has been materially adversely affected by an event beyond Advertiser’s reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Advertiser will make every reasonable effort to make payments on a timely basis to SourceKnowledge, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve Advertiser from any of its obligations as to the amount of money that would have been due and paid without such condition.
11.11 Arbitration. The parties will first attempt to resolve any dispute, claim, question, difference or controversy arising out of or in connection with this Agreement (a “Dispute“) by good faith discussions or email. If the parties cannot resolve a Dispute with good faith discussions, then the parties agree to finally resolve any such Dispute by arbitration, to the exclusion of the courts, pursuant to the provisions of the Code of Civil Procedure (Quebec), Book VII, Title II (Arbitration), except as such provisions are modified by this Section .
The party desiring to initiate arbitration must deliver to the other party a notice that it intends to submit a Dispute for arbitration and the parties will thereafter attempt to mutually agree upon the arbitrator. If the parties cannot agree upon the arbitrator within ten (10) days of the delivery of a Dispute notice, an arbitrator will be appointed by a judge of the Superior Court of Quebec.
The parties agree that arbitration will be conducted before one (1) arbitrator who shall have exclusive authority to resolve any Disputes referred to it, including as to the enforceability and/or formation of this agreement to arbitrate made between the parties. The arbitrator’s decisions and judgment will be made in writing, will be final and binding on the parties and will not be subject to appeal, but will have no precedential effect. The arbitrator shall not have the authority to award damages outside of those set forth in these Terms of Service.
Arbitration will take place exclusively in [Montreal, Province of Quebec], and the language of the arbitral proceedings shall be either English or French or both. The parties agree that the arbitration will be kept confidential and the existence of the proceeding and any element of it (including the subject matter or outcome of any arbitration) will not be disclosed beyond the arbitrator, the parties, their counsel and any person necessary to the conduct of the proceeding, except as may lawfully be required in judicial proceedings relating to the arbitration or otherwise or as may be required by law.
Each party shall pay their own expenses and fees, including their own attorneys’ fees, arising from arbitration, unless the arbitrator determines that your claims were improper or frivolous, in which case the arbitrator shall have the jurisdiction to require you to reimburse us for fees and expenses.
Notwithstanding anything to the contrary in this Section, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s Intellectual Property Rights.