1.) Incorporation; Entire Agreement. These Terms and Conditions (the “Terms and Conditions”), together with the
accompanying Insertion Order (the “IO”), constitute the entire agreement (the “Agreement”) between Advertiser and
SMARTEK with respect to the subject matter hereof, and supersede all prior or contemporaneous proposals, agreements
or communications, whether written or oral. These Terms and Conditions prevail over any of Advertiser's general terms
and conditions regardless whether or when Advertiser has submitted its request for proposal, order or such terms.
Provision of services to Advertiser does not constitute acceptance of any of Advertiser's terms and conditions and does
not serve to modify or amend these Terms and Conditions. Any modification of these Terms and Conditions applies only
to the IO into which these Terms and Conditions are incorporated.
2.) Advertisement Publication.
(a) Advertiser Materials. Advertiser shall provide to SMARTEK the advertising content (“Advertisement(s)”) and all other
reasonably necessary materials (including the Advertisements, collectively the “Advertiser Materials”) in accordance
with SMARTEK’s editorial, graphic, technical, or production criteria (the “Specifications”). SMARTEK shall have no liability
with respect to the Advertiser Materials or for delays or failures attributable to Advertiser’s failure to timely perform
such obligations. SMARTEK shall provide a final copy of an Advertisement and obtain prior consent via email from
Advertiser before publication (“Publication”) of the Advertisements.
(b) Approval. All Advertisements are subject to SMARTEK’s approval. Subject to the Terms and Conditions of this
Agreement, SMARTEK may reject or cancel for any reason at any time any Advertisement without liability, even if
previously acknowledged or accepted. SMARTEK has no obligation to make any modifications to an Advertisement after
the parties have finalized an Advertisement to be displayed on SMARTEK’s digital display tops (the “Display Tops”).
(c) Under-delivery. SMARTEK will monitor the delivery of the Advertisements and will notify Advertiser either
electronically or in writing as soon as possible if SMARTEK believes that an under-delivery is likely. In the case of a
probable or actual under-delivery, Advertiser and SMARTEK revise the IO in good-faith based on any actual or
(d) Over-delivery. SMARTEK may bonus as many ad units as SMARTEK chooses unless otherwise indicated on the IO.
Advertiser will not be charged by SMARTEK for any additional impressions above any level guaranteed on the IO.
(e) Proof of Performance SMARTEK will provide Advertiser with a performance report (“Performance Report”) within a
reasonable time of delivery of all Advertisements. The Performance Report may include: ad plays, hours, still images
and/or video footage (collectively, the “Images”) of individuals. Advertiser shall not identify or reidentify any individuals
that appear in the Images, and Advertiser shall not share any Images with any third parties, unless Advertiser obtains
SMARTEK’s prior written permission in each instance.
3.) Cancellation and Termination. Unless designated on the IO as non-cancelable, Advertiser may cancel the entire IO, or
any portion thereof, with 14 days’ prior written notice to SMARTEK, without penalty, for any guaranteed Advertisement.
For clarity and by way of example, if Advertiser cancels the guaranteed portions of the IO eight (8) days prior to serving
of the first impression, Advertiser will only be responsible for the first six (6) days of those Advertisements.
(a) Advertiser hereby grants to SMARTEK a non-exclusive right and license to display, transmit, and distribute the
Advertisements and Advertiser Materials, including any underlying third-party rights included therein, on the Display
Tops in connection with the Advertising Publication. SMARTEK and any applicable third parties may make technical
modifications (including resizing) as necessary to conform the Advertiser Materials to the Specifications. Advertiser
grants to SMARTEK the right to use Advertiser’s name and/or logo in marketing materials to identify Advertiser as an
advertiser with SMARTEK.
(b) Ad Metrics. SMARTEK hereby grants to Advertiser a non-exclusive, non-sublicensable, non-transferable, royalty-free,
revocable right and license to use and access all data related to the performance of the Publication of Advertisements,
including, without limitation, any reports, case studies, results or information created, compiled, analyzed or derived
from such data (the “Ad Metrics”), solely for Advertiser’s internal purposes. All goodwill associated with the Ad Metrics
will inure to the benefit of SMARTEK.
(c) Ownership. Notwithstanding any other provision herein to the contrary, (i) Advertiser retains all intellectual property
rights in and to the Advertiser Materials and (ii) all intellectual property rights in or to the Display Tops, the software and
technology related thereto, the content contained therein, (including, without limitation, the Ad Metrics), SMARTEK’s
Confidential Information, any other written information provided by SMARTEK and any customized content, including,
without limitation, graphics or other media (collectively, “SMARTEK IP”) are and will remain the exclusive property of
SMARTEK or its licensors, whether or not specifically recognized or perfected under the laws of the jurisdiction in which
the SMARTEK IP is used or licensed. Advertiser will not take any action that jeopardizes SMARTEK’s or its licensors’
proprietary rights, or attempt to acquire any right, in the SMARTEK IP. All rights not expressly granted to Advertiser with
respect to the SMARTEK IP are reserved by SMARTEK and its third-party licensors.
5.) Payment Terms and Conditions.
(a) The invoice will be generated by SMARTEK upon submission of the Insertion Order (IO) or within thirty (30) days of
completion of the IO. Invoices will be sent to Client's email address as set forth on the IO. All invoices (other than
corrections of previously provided invoices) pursuant to the IO will be sent within ninety (60) days of delivery of all
Advertisements. SMARTEK will invoice Advertiser for the services provided on a calendar-month basis with the net cost
based on actual delivery, flat-fee, or based on prorated distribution of delivery over the term of the IO, as specified on
the applicable IO.
(b) Except for any taxes due in connection with SMARTEK’s income derived from this Agreement, Advertiser shall be
solely responsible for any and all taxes that may become due in connection with this Agreement.
(c) Advertiser, including its agency, are jointly and severally obligated to pay all amounts due by the invoice date, and
they shall remain liable therefor until SMARTEK receives payment in full. Payment by Advertiser to its agency does not
constitute payment to SMARTEK.
(d) SMARTEK may assess interest at the rate of 1.5% per month (or at the highest rate permitted by law, if less) on the
principle amount of any overdue balance. Advertiser shall be responsible for all reasonable expenses (including
attorneys’ fees) incurred by SMARTEK in the collection of any such overdue payments.
(a) As used herein, “Confidential Information” means all confidential and proprietary information of a party (the
“Disclosing Party”) disclosed to the other party (the “Receiving Party”) that (i) if disclosed orally is designated as
confidential at the time of disclosure, (ii) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (iii)
reasonably should be understood to be confidential given the nature of the information and the circumstances of
disclosure, including, without limitation, this Agreement (including, without limitation, the pricing and other terms
reflected in the IO), the Advertising Publication, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (1) is or
becomes generally known to the public without breach of any obligation owed to the Disclosing Party known to the
Receiving Party; (2) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of
any confidentiality obligation; (3) was independently developed by the Receiving Party without reference to the
Disclosing Party’s Confidential Information; (4) is received from a third party without breach of any confidentiality
obligation known to the Receiving Party; or (5) any information contained in Ad Metrics.
(b) The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose
outside the scope of this Agreement, except with the Disclosing Party’s prior written consent, and shall use the same
degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and
proprietary nature, but in no event less than a reasonable degree of care. Notwithstanding the foregoing, the Receiving
Party may disclose Confidential Information to those of its employees and contractors who need to know such
information for purposes of performing the Receiving Party’s obligations under this Agreement if the Receiving Party
certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain
the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement.
(c) If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide
the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable
assistance, at Disclosing Party’s request and cost, if the Disclosing Party wishes to contest the disclosure.
(d) If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing
Party in breach of the confidentiality obligations hereunder, the Disclosing Party shall have the right, in addition to any
other remedy available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the
parties that any other available remedy is inadequate.
7.) Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SMARTEK PROVIDES ALL AD PLACEMENTS “AS
IS” AND “AS AVAILABLE” AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER WRITTEN OR
ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE. SMARTEK DOES NOT GUARANTEE CONTINUOUS OR UNINTERRUPTED AD
PLACEMENT, ANY NUMBER OF LEADS, OR ANY OTHER MEASURE OF PERFORMANCE OR SUCCESS. Nothing in this
Agreement shall be construed to permit Advertiser to independently engage in any third-party ad serving or tracking, or
otherwise gather data from or in connection with, the Display Tops and Publication of any Advertisement. SMARTEK’s
acceptance of an Advertisement for Publication does not constitute an endorsement of the product or service that is the
subject of the Advertisement or offered or provided by Advertiser.
(a) Advertiser shall indemnify, defend, and hold harmless SMARTEK and its licensors, and each of their respective
employees, officers, directors, and affiliates, from and against any and all claims, actions, suits, judgments, penalties,
losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by any of them arising
out of a claim by a third party alleged to have resulted from (i) any Advertisements or Advertiser Materials and any
content submitted by Advertiser to SMARTEK pursuant to this Agreement (including any claim that any Advertisements
or Advertiser Material infringes any trademark, copyright, or right of privacy); (ii) Advertiser’s breach or violation of this
Agreement, (iii) Advertiser’s provision or offering of any services or products to any third party resulting directly or
indirectly from the Publication of an Advertisement (iv) Advertiser’s failure to comply with applicable laws; or (v)
Advertiser’s gross negligence, willful or intentional misconduct, or fraud.
(b) SMARTEK shall indemnify, defend, and hold harmless Advertiser from and against any and all claims, actions, suits,
judgments, penalties, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by
Advertiser arising out of a claim by a third party alleged to have resulted from (i) SMARTEK’s failure to comply with
applicable law, or (ii) SMARTEK’s gross negligence, willful or intentional misconduct, or fraud.
(c) An indemnified party shall (i) provide the indemnifying party with prompt written notice of any claim, (ii) grant
control of the defense, investigation, and settlement thereof, and (iii) provide all reasonable assistance therewith. The
indemnified party may participate in the investigation, trial, defense, and settlement of such claim and any appeal
arising therefrom, through its attorneys or otherwise, at its own cost and expense. Notwithstanding the foregoing, no
settlement of a claim that involves a remedy other than the payment of money by the indemnifying party shall be
entered into without the consent of the indemnified party, which consent will not be unreasonably withheld or delayed,
unless the settlement includes an unconditional general release of the indemnified party.
9.) Limitation of Liability. EXCEPT FOR THIRD PARTY CLAIMS WITHIN THE SCOPE OF ADVERTISER’S INDEMNIFICATION
OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING FROM THE SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, BUSINESS, PROFITS, OR GOODWILL. THE FOREGOING
SHALL APPLY REGARDLESS OF THE LEGAL THEORIES AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL
CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE NET AMOUNT PAID OR PAYABLE
TO SMARTEK BY PARTNER PURSUANT TO THIS AGREEMENT.
10.) Feedback. Advertiser is under no obligation to provide any suggestion, idea, enhancement request, feedback,
recommendation, or other information about any services offered or provided by SMARTEK (“Feedback”). Advertiser
hereby assigns to SMARTEK all right, title, and interest (including, without limitation, intellectual property rights) in and
to any Feedback that Advertiser provides to SMARTEK and any modifications or derivative works thereof; provided,
however, that the foregoing shall not apply to Advertiser Materials or any modifications or derivative works thereof, as
provided in Section 2.c. If such assignment cannot be effectuated, Advertiser hereby grants to SMARTEK a royalty-free,
worldwide, perpetual license to use or incorporate any Feedback into any service offered or provided by SMARTEK.
(a) No Agency. The relationship between the parties is that of independent contractors and no employment, agency,
partnership, or joint venture is created hereunder.
(b) Governing Law; Jurisdiction. This Agreement all disputes arising out of or related to this Agreement or the Advertising
Publication shall be governed by the laws of the Province of Ontario, without regard to its conflict of law provisions. Any
legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in
Ontario, and each party consents to the jurisdiction thereof.
(c) Notices. All notices in connection with this Agreement must be in writing and will be deemed given upon receipt by
the party to whom the notice is directed. Notices shall be addressed to (i) Advertiser using the electronic or mailing
address set forth in the applicable IO to the attention of General Counsel, and (ii) SMARTEK using the following
electronic or mailing address:
4100B Sladeview Crescent Mississauga ON L5L 5Z3 email: email@example.com
(d) Assignment. Advertiser may not assign its rights or obligations under this Agreement without the prior written
consent of SMARTEK. Any purported assignment in violation of the foregoing will be void. This Agreement is binding
upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns.
(e) Third Party Beneficiaries. This Agreement is entered into solely between, and made for the sole benefit of, SMARTEK
and Advertiser, and, subject to the indemnification obligations and the limitations of liability herein, this Agreement will
not be deemed to create any obligations, remedies, or liabilities of a party to any third party (including, without
limitation, any Customer). No third party shall have the right to make any claim or assert any right under this
Agreement, and no third party shall be deemed a beneficiary of this Agreement.
(f) Force Majeure. Neither party shall be considered in breach of this Agreement by reason of any failure or delay in its
performance hereunder if such failure is due to causes beyond its reasonable control, including, without limitation, acts
of the other party, failure of facilities, act of God, delays in transportation, inability beyond its reasonable control to
obtain necessary labor or materials, or events such as fires, floods, earthquakes, storms, war, act of public enemy, civil
commotions, and the like or by any law, rule, regulation, order, or other action by any public authority, whether existing
or in effect prior to or after the date of this Agreement.
(g) Headings. The section headings contained in this Agreement are for convenience only and shall not be considered in
(h) Amendments; Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in
writing and signed by both parties. The failure of either party to enforce its rights under this Agreement at any time for
any period of time will not be construed as a waiver of such rights.
(i) Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that provision will be
limited or eliminated to the minimum extent necessary so that the remaining provisions shall otherwise remain in full
force and effect and enforceable.
Counterparts. This Agreement may be executed in separate counterparts, each of which will be an original, but all of
which will together constitute one instrument. This Agreement may be signed by the parties exchanging electronically
signed signature pages via facsimile transmission or any other method that indicates an intention to be bound by these