Advertising Terms & Conditions
THE DISPLAY OF YOUR ADVERTISEMENT ON THE BLOCK TALKTM APP (THE “APP”) IS SUBJECT TO AND IS GOVERNED BY THE FOLLOWING TERMS AND CONDITIONS. YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS IS REQUIRED IN ORDER FOR YOUR ADVERTISEMENT TO BE DISPLAYED ON THE APP. BY ELECTING TO DISPLAY YOUR ADVERTISEMENT ON THE APP, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS. PLEASE REVIEW THE TERMS AND CONDITIONS CAREFULLY BEFORE SUBMITTING YOUR PAYMENT FOR THE ADVERTISEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OR IF YOU DO NOT SUBMIT PAYMENT FOR YOUR ADVERTISEMENT, YOUR ADVERTISEMENT WILL NOT BE DISPLAYED ON THE APP.
1. Definitions and Interpretation
1.1 Definitions. In this Agreement, including the recitals to this Agreement, unless the context otherwise requires:
(a) “Advertisement” means any advertisement provided by the Advertiser to 2052503 Alberta Inc. in an electronic form for publication or display on the App, provided that such advertisement complies with the provisions of this Agreement and the technical specifications set forth in Schedule I hereto.
(b) “Advertising Services” has the meaning ascribed thereto in Section 2.1 hereof.
(c) “Agreement” means the Advertising Agreement to which the terms and conditions are a part, including the recitals and schedules to the Advertising Agreement, as same may be amended or supplemented from time to time.
(d) “Business Day” means any day other than a Saturday, a Sunday or a statutory or civic holiday in Calgary, Alberta, Canada.
(e) “Effective Date” means the effective date of the Agreement.
(f) “Fee” has the meaning given to that term in Section 4.1 hereof.
(g) “GST” means the goods and services tax assessed under the Excise Tax Act, R.S.C. 1985, C. E- 15, as amended.
(h) "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or un-registrable, registered or unregistered, including any application or right of application for such rights, and includes without limitation, trade-marks, trade names, trade secrets, business names, website data and licenses, patents and patent applications, inventions, know-how, copyrights, moral rights, service marks, brand names, designs, data bases, conceptions, discoveries, inventions, improvements or developments on existing technology, systems, devices, photographs, formulae, mock-ups, models, surveys, plans, sketches, configurations, tolerances, test data, computer software and programs, source codes, work codes, data and information, business plans, works of authorship, writings, overheads, taped discussions or conversations, notes, mask works and products and all other industrial or intellectual property and all applications therefor and all goodwill connected therewith.
(i) “Losses” means, in respect of any matter, all claims, demands, losses, damages, liabilities, deficiencies, costs and expenses (including all legal fees on a solicitor and client basis and other professional fees and disbursements, interest, penalties and amounts paid in settlement) arising as a consequence of that matter, resulting from a misrepresentation or breach of warranty or covenant or other obligation by a Party.
(j) “Parties” means 2052503 Alberta Inc. and the Advertiser jointly, and “Party” means any one of the Parties.
(k) “Term” has the meaning ascribed thereto in Section 7.1 hereof.
1.2 Interpretation. In this Agreement:
(a) the division into Articles and Sections and the insertion of headings are for convenience of reference only and do not affect the construction or interpretation hereof;
(b) “including” or “includes” means “including (or includes) but is not limited to” and shall not be construed to limit any general statement preceding it to the specific or similar items or matters immediately following it;
(c) "hereby", "hereof", "herein", "hereunder", "herewith", "hereto" and similar terms refer to the terms and conditions and not to any particular provision hereof.
(d) references to any legislation, statutory instrument or regulation or a section thereof, unless otherwise specified, is a reference to the legislation, statutory instrument, regulation or section as amended, restated and re-enacted from time to time;
(e) words in the singular include the plural and vice-versa and words in one gender include all genders; and
(f) references to dollar amounts or “$” are to Canadian dollars and all payments made hereunder or pursuant hereto shall be made in Canadian dollars, unless otherwise specified by the Party receiving such payment.
1.3 Construction. This terms and conditions have been negotiated between persons that are sophisticated and knowledgeable in the matters contained herein and who have acted in their own self-interest. Each Party acknowledges and agrees that it has been advised to, and has had sufficient and reasonable opportunity to consult with legal counsel prior to its agreement to be bound by the terms and conditions; accordingly, the provisions of hereof shall be interpreted in a reasonable manner to effect the purpose of the Parties, and any rule of construction to the effect that any ambiguities are to be resolved against the Party that drafted the terms and conditions, shall not apply to the construction or interpretation hereof.
2. Provision of Advertising Services
2.1 During the Term, 2052503 Alberta Inc. will display the Advertisement on the App in accordance with and subject to the provisions of hereof (the “Advertising Services”).
2.2 The Advertiser shall, at least ten (10) Business Days prior to the commencement of the Term, provide 2052503 Alberta Inc. with a copy of the Advertisement along with any accompanying materials.
2.3 The Advertiser shall ensure that the Advertisement does not contain any malicious software or links to any malicious software, and that the Advertisement, and any materials to which it links or any content, products or services that it advertises or promotes:
(a) is in strict compliance with all applicable laws;
(b) does not infringe the Intellectual Property Rights of any person;
(c) does not contain any defamatory, threatening, abusive, obscene or harmful content or content that invades or violates any person’s privacy; and
(d) does not promote, encourage or popularize any criminal activity, hate speech or unlawful discrimination against any person.
2.4 The Advertiser will ensure that the Advertisement is acceptable to 2052503 Alberta Inc. in form and substance and complies with the terms and conditions hereof. 2052503 Alberta Inc. may, at its sole discretion, at any time reject, modify (or require the Advertiser to modify) or remove the Advertisement or any part of it from the App if 2052503 Alberta Inc. considers that the Advertisement or any material to which the Advertisement links is inappropriate or does not otherwise comply with this Agreement.
2.5 The Advertiser acknowledges and agrees that: (a) notwithstanding Section 2.4 and 2.6 hereof, 2052503 Alberta Inc. is merely displaying the Advertisement and relies wholly and solely on the Advertiser to review, screen or editorially control the contents of the Advertisement; (b) the Advertiser is solely responsible and liable for the Advertisement and all of its contents and the contents of any materials to which the Advertisement links; (c) 2052503 Alberta Inc. is not obligated to provide any additional services not expressly set out herein; (d) 2052503 Alberta Inc. does not guarantee in any way either the number of views or click-throughs the Advertisement will receive or the Advertisement’s effectiveness in increasing the Advertiser’s reputation, revenue or profits; and (e) 2052503 Alberta Inc. cannot control the usage of the App, and cannot guarantee that users of the App will view and click through the Advertisement. The advertiser shall and does hereby indemnify and save harmless 2052503 Alberta Inc. of and from any and all claims, proceedings and expenses (including, without limitation, legal fees on a solicitor and his own client basis) sustained, paid or incurred by 2052503 Alberta Inc. arising from the Advertisement and its contents and the contents of any materials to which the Advertisement links.
2.6 2052503 Alberta Inc. will make commercially reasonable efforts to ensure that the App is available to its users, but the Advertiser acknowledges and agrees that access to and use of the App might be interrupted and will not be free of errors, and that the App may be unavailable from time to time due to routine maintenance, upgrades, hardware or software malfunctions, repairs, power outages, hacking, malicious or illegal access and modification, denial of service attacks, unforeseeably large service demands, or other reasons beyond 2052503 Alberta Inc.’s reasonable control, and under no circumstances whatsoever shall 2052503 Alberta Inc. be liable for any interruptions in the availability of the App for any of the foregoing reasons.
2.7 The Advertiser acknowledges that 2052503 Alberta Inc. has agreed to provide the Advertising Services to the Advertiser on a non-exclusive basis, and nothing contained herein shall preclude or restrict 2052503 Alberta Inc. from publishing any other material or advertisement on the App, including any advertisement for products and/or services that may compete with the products and/or services offered by the Advertiser.
2.8 Without limiting any other provision of hereof, the Advertiser hereby acknowledges and agrees that the App and the Advertising Services are provided by 2052503 Alberta Inc. “as is” and “as available” and without representations or warranties of any kind. To the fullest extent permissible under applicable law, 2052503 Alberta Inc. disclaims any and all covenants, representations and warranties, whether express, implied or statutory (including any warranties of merchantability, fitness for a particular purpose, accuracy, non-infringement, the numbers or characteristics of persons who may view the Advertisement, or that any given person will be able to access the App or the Advertisement), except for those expressly set out in herein. 2052503 Alberta Inc. does not represent or warrant that the App or the Advertisement will be available without interruption or will be error-free or that defects will be corrected.
3. Representations and Warranties of the Advertiser
3.1 The Advertiser represents, warrants and covenants to 2052503 Alberta Inc. as follows, and acknowledges that 2052503 Alberta Inc. has relied upon the completeness and accuracy of such representations, warranties and covenants in entering into this Agreement:
(a) the Advertiser has the corporate capacity to enter into this Agreement and to perform each of its obligations hereunder;
(b) the Advertiser has duly authorized, executed and delivered this Agreement;
(c) the Advertiser has all required licenses, consents, approvals and permits from any person necessary to perform the Advertiser’s obligations hereunder and will otherwise comply with all statutes, laws, rules and regulations with respect to performance of the Advertiser’s obligations hereunder;
(d) the Advertiser is the owner of, or has been duly licenced to use, all of the materials contained in or associated with the Advertisement, and the Advertisement does not infringe the Intellectual Property Rights of any person, and the Advertiser has the right to publish the Advertisement and to grant the licence in Section 5.1; and
(e) all claims contained in the Advertisement can be fully substantiated and conform with all applicable laws and regulations, including Trade Practices and Consumer Protection legislation, and the Advertisement will not include or link to anything that, if reproduced, published, transmitted or used, would violate any law, including copyright, trade-mark, trade secret, patent, privacy or other laws, and will not be defamatory, threatening, abusive, obscene, harmful or invasive of or violate any person’s privacy.
4.1 In consideration of 2052503 Alberta Inc. providing the Advertising Services to the Advertiser, the Advertiser shall pay 2052503 Alberta Inc. monthly advertising fees in advance (the "Fee") based on the package of services selected by the Advertiser. The Fee is exclusive of GST and all applicable taxes, which shall be payable by the Advertiser in addition to the Fee at the rates prescribed under applicable law.
4.2 2052503 Alberta Inc. will issue an invoice to the Advertiser for the Fee plus GST payable in respect of any calendar month on or before the commencement of such calendar month. At the option of 2052503 Alberta Inc., the invoice shall be delivered in an electronic form via e-mail. The invoiced Fee plus GST shall be payable in full within five (5) Business Days of the date of the invoice by way of electronic funds transfer, credit card payment or bank draft in accordance with the payment details set forth in Schedule II.
4.3 Any late payments will be subject to interest at the rate of 2% per month or 24% per annum from the invoice date until the date the invoice (including all accrued interest) is paid in full. 2052503 Alberta Inc. reserves the right to suspend the Advertising Services if the Advertiser does not pay the invoice when due in full, and any such suspension will not be a breach of 2052503 Alberta Inc.’s obligations under this Agreement.
5. Intellectual Property Rights
5.1 The Advertiser grants 2052503 Alberta Inc. a non-exclusive, royalty-free, perpetual, irrevocable, world-wide licence to compress, modify, use and publicly display the Advertisement, to communicate the Advertisement to the public by telecommunication, and to perform all actions in relation to the Advertisement as required to provide the Advertising Services.
5.2 Other than the licence set out in Section 5.1 hereof, neither Party will acquire any ownership interest or other rights in the other Party’s Intellectual Property Rights. Nothing contained herein grants the Advertiser any right, title or interest in or to any proprietary rights, including without limitation any Intellectual Property Rights in or to the App, any documentation related to the App, or 2052503 Alberta Inc.’s websites, or to 2052503 Alberta Inc.’s trademarks or tradenames, or any data or materials contained on or linked through the App
6. Indemnification and Limitation of Liability
6.1 The Advertiser hereby agrees and undertakes to indemnify and save harmless 2052503 Alberta Inc. and its shareholders, directors, officers, employees, service providers, consultants and other representatives (the “Indemnified Parties”) from and against all Losses claimed against or incurred by one or more of the Indemnified Parties in connection with or as a result of: (a) the Advertiser’s breach of any provision hereof, (b) a misrepresentation by the Advertiser or any of the Advertiser’s personnel, (c) the Advertisement or its contents (including any materials to which the Advertisement links); or (d) the negligence, willful misconduct or fraud committed by the Advertiser or any of its employees, contractors or representatives.
6.2 THE AGGREGATE LIABILITY OF 2052503 Alberta Inc. ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID TO 2052503 Alberta Inc. BY THE ADVERTISER WITHIN THE 3 MONTH TIME PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. IN NO EVENT, SHALL 2052503 Alberta Inc. BE LIABLE TO THE ADVERTISER FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LEGAL COSTS AND FEES), OR FOR ANY LOSSES (INCLUDING, WITHOUT LIMITATION, LOST GOODWILL, LOST SALES, LOST REVENUE, LOST PROFITS, OR LOST DATA), WHATSOEVER. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 6.2 APPLY TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, HOWSOEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE. THE PARTIES HAVE FREELY AND OPENLY NEGOTIATED THE TERMS AND CONDITIONS IN THE KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS HEREOF.
7. Term and Termination
7.1 Subject to the provisions of Sections 7.2 and 7.3 below, the provision of Advertising Services shall commence on the date on which the Services are purchased by the Advertiser (“Commencement Date”) and shall terminate on the expiry of the period for display of the Advertisement as selected by the Advertiser at the time of purchase, unless terminated earlier in accordance with this Article 7 hereof (the “Term”
7.2 2052503 Alberta Inc. may terminate the Agreement, without notice or penalty and without prejudice to any of its remedies hereunder, under law or in equity:
(a) if the Advertiser commits a breach of the provisions hereof, including without limitation, any of its representations, warranties or covenants hereunder;
(b) if the Advertiser becomes insolvent, enters receivership, assignment for the benefit of creditors or becomes bankrupt, whether voluntarily or involuntarily;
(c) the Advertiser ceases to carry on business; or
(d) the Advertiser is the subject of any corporate action or proceedings, whether voluntary or involuntary, for dissolution, winding-up or liquidation.
7.3 Subject to Section 7.2 hereof, either Party may terminate the Agreement upon 5 days’ notice in writing to the other Party. The Advertiser shall not be entitled to a refund of any Fees or portion thereof upon such termination for any reason, provided however that if the Agreement is terminated by 2052503 Alberta Inc. for convenience, 2052503 Alberta Inc. shall refund a prorated portion of the Fees in respect of the remainder of the calendar month during which the effective date of termination occurs.
7.4 The obligations contained in Section 1.3, Articles 5 and 6, and Sections 8.1, 8.5 and 8.8 hereof shall survive the expiry or termination of the Agreement.
8. General Matters
8.1 Relationship of the Parties. Nothing herein creates or is intended to create any partnership, joint venture relationship, fiduciary relationship or relationship of confidence and trust between the Parties. Each Party shall have the right to engage in and receive full benefits from any independent business activities or operations, whether or not competitive with the business activities or operations of the other Party, without consulting with, and without any obligation to, the other Party. The doctrines of corporate opportunity or business opportunity that sometimes apply to persons engaged in a joint venture or having a fiduciary relationship or a relationship of confidence and trust shall not apply in the case of either Party. There are no implied covenants contained herein or otherwise.
8.2 Notices. Any notice or other communication given by a Party to the other Party pursuant to this Agreement: (a) must be in writing and addressed to the attention of the receiving Party at the address, facsimile number or e-mail address set forth on the signature page; and (b) will be deemed to have been given: (i) when verified by written receipt if personally delivered or delivered by overnight courier or registered mail, or upon actual receipt if sent by mail without verification of delivery; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email. If a notice is given on a day that is not a Business Day, it shall be deemed to have been given on the next succeeding Business Day. A Party may change its address for notice by giving notice to the other Party
8.3 Time of Essence. Time is of the essence hereof.
8.4 Expenses. Each Party shall pay all costs and expenses (including taxes imposed on those expenses) it incurs in the authorization, negotiation, preparation, execution and performance of the Agreement and the transactions contemplated hereby and thereby, including all fees and expenses of its legal counsel, bankers, accountants or other representatives or consultants.
8.5 Governing Law and Jurisdiction. The Agreement and any dispute arising from or in relation to this Agreement shall be governed by, and interpreted and enforced in accordance with, the law of the Province of Alberta and the laws of Canada applicable therein. Each Party irrevocably and unconditionally attorns to the exclusive jurisdiction of the courts of the Province of Alberta for the determination of any disputes arising hereunder or related hereto.
8.6 Language. The Parties hereto have expressly required that this Agreement and all documents and notices relating thereto be drafted in the English language. Les Parties aux présentes ont expressement exigé que la présente convention et tous les autres documents ou avis qui y sont afferents soi ent rédigés en langue anglais
8.7 Further Assurances. Each Party shall promptly do, execute, deliver or cause to be done, executed or delivered all further acts, documents and matters in connection herewith that any other Party may reasonably require, for the purposes of giving effect to the provisions hereof.
8.8 Assignment and Enurement. Neither Party may assign this Agreement without the prior written consent of the other Party. Subject to the foregoing, the terms and conditions hereof shall enure to the benefit of and be binding upon the Parties and their respective heirs, representatives, successors and permitted assigns.
8.9 Waiver and Amendment. None of the terms or conditions hereof may be waived except in writing by the Party which is entitled to the benefits thereof. No supplement, modification or amendment hereof shall be binding unless executed in writing subsequent to the Effective Date by each of the Parties.
8.10 Entire Agreement. The provisions hereof constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersedes and replaces all prior correspondence, agreements, negotiations, discussions and understandings, written or oral.
8.11 Severability. If, in any jurisdiction, any provision hereof or its application to any Party or circumstance is restricted, prohibited or unenforceable, that provision shall, as to that jurisdiction, be ineffective only to the extent of that restriction, prohibition or unenforceability without invalidating the remaining provisions hereof, without affecting the validity or enforceability of that provision in any other jurisdiction and, if applicable, without affecting its application to the other Parties or circumstances. The Parties shall engage in good faith negotiations to replace any provision which is so restricted, prohibited or unenforceable with an unrestricted and enforceable provision, the economic effect of which comes as close as possible to that of the restricted, prohibited or unenforceable provision which it replaces.
8.12 Public Announcements. No Party shall make any public statement or issue any press release concerning the provisions hereof or the transactions contemplated herby except with the prior consent of the other Party.
I/ WE HAVE REVIEWED THE TERMS AND CONDITIONS FOR THE DISPLAY OF ADVERTISEMENT ON THE BLOCK TALKTM APP AND HEREBY AGREE AND ACKNOWLEDGE TO BE BOUND BY THE TERMS AND CONDITIONS. I/WE FURTHER ACKNOWLEDGE THAT MY/OUR ELECTRONIC SUBMISSIONS CONSTITUTE MY/OUR AGREEMENT TO PURCHASE ADVERTISING SERVICES FOR DISPLAY OF MY/OUR ADVERTISEMENT ON THE BLOCK TALKTM APP IN ACCORDANCE WITH AND SUBJECT TO THE TERMS AND CONDITIONS.