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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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).

8. 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.

9. 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. DEFINITIONSFor 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 periods of the same length 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. The Licensor 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. InterpretationThe 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 ExchangeAll references in this Agreement to dollars, unless otherwise specifically indicated, are expressed in CDN dollars.
    3. Governing Law/JurisdictionAny 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/EnurementNeither 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. SeverabilityAny 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 ReferencesThe 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. WaiverThe 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 CumulativeThe 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 MajeureNeither 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. SurvivalIf 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 AgreementThis 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. NoticesLicensee 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.

Updated: February 20, 2020