DMS Terms & Conditions

1. Definitions & Interpretation

1.1 Application. The following DMS Terms & Conditions shall apply to the specific Digital Marketing Services purchased and documented in the Sales Agreement between Postmedia and Customer (the “Sales Agreement”) in addition to the terms and conditions set out in the Sales Agreement, available here https://www.postmediasolutions.com/en-ca/general-terms-conditions. In the event of any conflict or inconsistency between the provisions of the Sales Agreement and the DMS Terms & Conditions, then the terms that provide the most detailed or comprehensive guidance on the matter shall prevail only to the extent of such conflict or inconsistency.

1.2 Interpretation. For purposes of these DMS Terms & Conditions, all references to “days” will be measured in business days unless otherwise noted. A “business day” refers to any day except a Saturday, Sunday or nationally recognized Canadian holiday.

1.3 Definitions. All terms not defined herein shall have the meanings set out in the Sales Agreement, as applicable: 

 

 

2. Digital Marketing Services

2.1 Types of Services. Throughout the Term, Postmedia shall provide certain Digital Marketing Services to Customer in accordance with the Sales Agreement and these DMS Terms & Conditions. Digital Marketing Services may include, but are not limited to, the following: 

2.2 New and Additional Services. Postmedia may introduce new and additional Digital Marketing Services from time to time, and correspondingly, additional terms and conditions, which will be posted online or provided to Customer, in each case such additional terms and conditions shall be deemed incorporated by reference into and made part of the Sales Agreement and these DMS Terms & Conditions, as applicable.

3. Customer Obligations – Marketing Services and Campaign Logistics

3.1 Compliance and Cooperation. Customer acknowledges and agrees that it shall not use the Digital Marketing Services, Work Product or Custom Work Product in any manner that is: (i) illegal or promotes or encourages illegal activity; (ii) promotes, encourages or engages in any spam or other unsolicited bulk email, hacking or cracking; (iii) contains or installs any viruses, worms, bugs, trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging or limiting the functionality of any software or hardware; (iv) infringes on the intellectual property rights of any person or entity; (v) violates the privacy rights of any person or entity; or (vi) interferes with the operations of Postmedia. Customer shall cooperate with Postmedia in the provision of Digital Marketing Services, including providing timely responses to requests by Postmedia (including as it relates to Section 3.3) and technical information as reasonably required by Postmedia to facilitate the delivery of the Digital Marketing Services. Customer shall notify Postmedia immediately of any changes to the domain names of Customer Site(s), technical setup and any other material information regarding the technical infrastructure which may affect the Digital Marketing Services delivered by Postmedia. Customer shall have the sole responsibility for ensuring the accuracy of all Customer information provided to Postmedia. 

3.2 Permission to Access Accounts.  If Customer purchases Digital Marketing Services that require Postmedia to access, create or manage third party social media accounts on behalf of Customer (each a “Social Media Account”), by signing the Sales Agreement, Customer consents to Postmedia creating new Social Media Accounts and/or accessing its existing Social Media Account(s) during the Term for the sole purpose of providing the Digital Marketing Services. Customer shall provide Postmedia with full access/administrative rights, including such passwords and other access information (including any updates thereto) as it may reasonably require (the “Credentials”) to perform the Digital Marketing Services.

3.3 Customer Approvals. Upon the acceptance of the Sales Agreement by Postmedia, Postmedia shall commence the Digital Marketing Services and prepare the Campaign for launch (the “Set-Up Period”). Customer acknowledges and agrees that it will cooperate with Postmedia during the Set-Up Period, including by reviewing any deliverables provided by Postmedia to Customer in draft form for review (a “Proof”) and providing the necessary approvals, comments, or rejections within the timeline agreed to between the Parties from time to time (the “Set-Up Notice Period”). For greater certainty, if Customer does not provide written response within the Set-Up Notice Period either approving or rejecting the Proof (in whole or in part), the entire Proof will be deemed approved by Customer without any further action required by either Party and Postmedia may use its commercial judgement to select an appropriate template for Customer. Once the Set-Up Period is done, and the Work Product is completed and ready to “go-live,” certain log-in information, domain name information and/or Credentials may be requested from the Customer and is required to “go-live”. Customer shall promptly provide Postmedia with the necessary information required to “go-live”. If the information has been requested, and a written response is not received in five (5) business days from the request, the Work Product will be deemed fulfilled and no further actions will be required by Postmedia. If at a future date, the log-in information, domain name information and/or Credentials are received from the Customer, the fulfilled Work Product will be made live and Postmedia shall not be liable for any losses resulting from the delay in the Work Product being made live.

3.4 Customer Data. Customer acknowledges and agrees that its use of the Digital Marketing Services, including any Customer Data or content it submits, will be for commercial or professional use and will comply with the Sales Agreement and these DMS Terms & Conditions and all applicable laws, rules and regulations. Customer shall not collect, harvest or use (or permit anyone else to collect, harvest or use) any Customer Data or any non-public or personally identifiable information without their express prior written consent.

3.5 Customer Materials. 

3.5.1 Delivery of Customer Materials. Customer shall deliver all Customer Materials required for the applicable Digital Marketing Services to Postmedia within the timeline and process defined within the relevant service level agreement. If the Customer Materials do not conform to Postmedia’s specifications (including, without limitation, if it is contrary to the Postmedia Creative Policy as amended from time to time, available here: https://www.postmediasolutions.com/en-ca/creative-policy) or are considered Prohibited Content, then Postmedia may, in its sole discretion, modify such Customer Materials to meet Postmedia’s other technical requirements or to address Campaign performance issues, or reject the Customer Materials and refund any applicable Fees paid in advance related to the Digital Marketing Services which cannot be completed with the non-compliance Customer Materials. Failure by Customer to submit the Customer Materials within the applicable deadlines shall relieve Postmedia from all obligations with respect to such advertisement and Postmedia shall have the right, but not the obligation, to run a public service announcement ad in lieu of Customer’s advertisement and to charge Customer for the fees related to such advertisement.  

3.5.2 Typographical Errors, Omissions, Non-Infringing.  Customer acknowledges and agrees that Postmedia shall not be liable for typographical errors, incorrect insertions or omissions contained in any of the Customer Materials delivered to Postmedia that have not be modified by Postmedia in accordance with Section 3.5.1, Customer inventory databases or data fees provided by Customer. If Customer requests that Postmedia create any Work Product or Custom Work Product, Customer is solely responsible for ensuring that any Customer Materials that it provides to Postmedia for inclusion within the Work Product is complete, accurate, is non-infringing and complies with applicable law. Customer acknowledges and agrees that it shall be solely liable for, and shall indemnify Postmedia and its affiliates in respect of, any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including, without limitation, reasonable legal fees and expenses) (collectively, “Costs”) incurred in connection with any claim, action or proceeding arising from or relating to the: (a) the violation by Customer of any rights of any third party, including intellectual property, privacy, publicity or other proprietary rights; (b) advertisements or Customer Materials approved by Customer including, but not limited to, allegations that such advertisements, Customer Materials or other subject matter are defamatory or obscene; (c) the sale, license or provision of Customer's goods or services; (d) Customer’s online use of competitor “keywords”; (e) Customer’s violation or alleged violation of any applicable laws, regulations or other judicial or administrative action, including without limitation, any applicable Privacy Laws; and (f) any willful, intentional or negligent act, omission or misrepresentation by Customer. 

3.6 Domain Name Registration. If Customer purchases any Digital Marketing Services which include a Hosted Site, Customer shall be responsible for: (i) registering a domain name for the applicable Hosted Site, which registration shall remain in good standing throughout the Term; (ii) the applicable domain server name DNS hosting; (iii) all domain costs associated with registering and maintaining the domain name, renewals, and DNS record management. Customer is also responsible for either managing the configuration of their domain name in accordance with the requests from Postmedia or providing Postmedia the necessary access to correctly point the domain name, when necessary.

3.7 Advertising Placement. Customer understands and agrees that all digital advertising and all Digital Out-of-Home Advertising displayed through Postmedia’s programmatic trading desk is placed for best optimization based on Third-Party Technology and Postmedia does not determine the placements of such digital advertising or Digital Out-of-Home Advertising, nor does Postmedia assume any responsibility or liability for the same. All digital and print advertising placement positions on Postmedia’s assets or Postmedia-managed platforms are in the sole discretion of Postmedia. Postmedia will use commercially reasonable efforts to fulfill the advertisement placement requests and other stipulations that appear in the Sales Agreement but does not guarantee that the same will be followed. Unless a premium position fee has been paid by Customer, no adjustments, reinstatements or refunds will be made because of the advertisement placement of a print advertisement or the location of a directly sold digital advertisement. While payment of a premium position fee does not guarantee any specific advertisement placement, whether print or digital, the Customer shall receive a pro-rata refund of any premium position fees paid if Postmedia is unable to provide the requested advertisement placement.

4. Customer Obligations – Third-Party Suppliers’ Products and Services.

 

4.1 General. Customer acknowledges and agrees that Postmedia may use one or more third-party suppliers to provide some or all of the Platform, technology, content or other products and services used in the provision of the Digital Marketing Services to Customer, including any Work Product and/or Custom Work Product created in connection therewith. Such third-party suppliers may use software or other technology in conjunction with their services (collectively, “Third-Party Technology”) and such Third-Party Technology may be subject to additional terms and conditions in effect from time to time by the third-party supplier. To the extent that any of the Digital Marketing Services requires the use of Third-Party Technology or any Work Product or Custom Work Product contains Third Party Technology, Customer agrees to comply with the applicable third-party supplier’s terms and conditions governing the use of such the Third-Party Technology during the Term. Customer acknowledges and agrees that it shall be solely liable for, and shall indemnify Postmedia and its affiliates from, all Costs incurred in connection with any claim, action or proceeding arising from or relating to the violation by Customer of any third-party supplier’s terms and conditions relating to Third-Party Technology. 

4.2 Third Party Platforms. To the extent that the Digital Marketing Services involve the use of or participation in third-party social media platforms (such as Facebook, X, LinkedIn or other similar platforms) Postmedia and Customer each agree to comply with the terms of use governing those platforms during the Term. 

4.3 Third Party Content. Any third-party content made available by Postmedia (including without limitation all listing content) (the “Third-Party Content”) is provided on an “as-is” basis and “as available” basis without any warranty of any kind. Customer acknowledges and agrees that Postmedia is not responsible for, and under no obligation to control, monitor or correct Third-Party Content; however, Postmedia reserves the right to remove, disable or take additional remedial action if any such content contains any prohibited content or otherwise violates any other provisions of the Sales Agreement or these DMS Terms & Conditions.

5. Term and Discontinuation of Services.

5.1 Discontinuation of Services. In additional to the termination rights set out in the Sales Agreement, Postmedia reserves the right to, and Customer acknowledges and agrees that Postmedia may, cease any or all of the Digital Marketing Services at any time on written notice (a “Discontinuation of Service”). Postmedia will not be responsible to Customer or any other person in any way for any loss or damage of any kind arising in connection with or because of such Discontinuation of Services.  

5.2 Effect of Discontinuation of Services. Upon the expiry or termination of the Sales Agreement or Discontinuation of Service for any reason, the following provisions shall apply:

5.2.1 Cessation of Use. Customer must immediately cease using the Digital Marketing Services, Work Product and/or Custom Work Product provided in connection therewith and the Platform. The Platform License and Work Product License shall terminate immediately. If applicable, Customer must cease using any telephone numbers assigned to it as part of the Call Tracking Services. If applicable, Customer shall not use any digital audio creative produced by Postmedia for purposes other than the DAA campaign purchased by Customer, without the prior written approval of Postmedia.

5.2.2 Return of Postmedia Intellectual Property. Customer will be responsible for returning or, at the direction of Postmedia in its sole discretion, destroying or deleting, any Postmedia owned intellectual property, whether registered or unregistered, or other Postmedia materials related to the Sales Agreement and Digital Marketing Services.

5.2.3 Fees. If applicable, Postmedia shall render a final invoice for unpaid services up to and including the date of the Discontinuation of Services and Customer remit payment within thirty (30) days of receipt of the final invoice.  Any un-billed Fees applicable to the terminated Digital Marketing Services after the date of the Discontinuation of Service shall cease to become due and payable.

5.2.4 Cached Content. Customer acknowledges and agrees that due to the nature of the internet, certain information regarding Customer that will be posted on the internet as part of the Digital Marketing Services, including, for instance, cached versions of pages from Customer Site or Hosted Site may continue to be available from the internet following Discontinuance of Service of any of the Digital Marketing Services and/or termination or expiry of the Sales Agreement. Customer shall be solely responsible for contacting search engines to have such pages removed..

6. Licenses

 

6.1 License to Platform. Upon execution of the Sales Agreement, Customer will be granted a revocable, non-transferable, non-exclusive, royalty-free, limited license (“Platform License”) to use a Platform solely for the purpose of accessing Analytics Data and other reports and statistics related to the performance of Customer’s Campaign(s) and Digital Marketing Services (“Campaign Reporting”). Postmedia may terminate the Platform License at any time and for any reason upon written notice to Customer. Access to the Platform and the Campaign Reporting is solely at the risk of the Customer and Postmedia shall not be responsible for any transmission thereof that may be corrupted or contain viruses, bugs or other defects. This Platform License is granted on an ‘as is’ basis and Postmedia makes no representations or warranties, express or implied, including any warranty of merchantability, non-infringement, accuracy, completeness or fitness for a particular purpose and Postmedia disclaims any responsibility regarding the accuracy of any Campaign Reporting or the suitability of it for Customer. Customer’s access to the Platform shall be password protected and Customer agrees that it shall not share its password with third parties or otherwise provide access to the Platform to third parties. If the security of Customer’s username(s) or password(s) is compromised in any way, or if Customer or its agent suspects that it may be, Customer shall immediately contact Postmedia. Postmedia is not responsible for any loss or damage suffered by the compromise of any password. Customer acknowledges and agrees that it does not have, nor will it claim any right, title or interest in the Platform, the Platform software, data, applications, methods of doing business or any elements thereof, or any content provided on the Platform. Customer may only access the Platform via a web browser or in a manner otherwise approved by Postmedia. Customer will not attempt in any way to reverse engineer, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Platform. Customer shall not remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included within the Digital Marketing Services. Use of the Platform may be subject to additional terms and conditions required by a third-party supplier.

6.2 License to Work Product. To the extent that the Digital Marketing Services involve the creation of any Work Product, upon delivery of the Work Product by Postmedia to Customer, Customer will be granted a revocable, non-transferable, exclusive, royalty-free, limited license to use the Work Product specified in the Sales Agreement (“Work Product License”). Postmedia may terminate the Work Product License, at any time and for any reason upon written notice to Customer. With respect to any Custom Work Product, such license shall be governed by the terms of the license specified in the separate statement of work in relation to such Custom Work Product. 

 

6.3 License to Customer Materials. Customer hereby grants to Postmedia a non-exclusive, royalty-free, irrevocable, worldwide, perpetual license to use, copy, modify, publicly perform, display, broadcast and transmit the Customer Materials for the purpose and to the extent necessary for Postmedia to publish any advertisements and/or perform the Digital Marketing Services contemplated by the Sales Agreement. All title to and ownership of all Customer Materials shall remain with Customer or its third-party licensors. In addition, Customer agrees that Postmedia may, during the Term and thereafter, use, publicly perform, display, broadcast and transmit the Customer Materials and the Customer’s name (including any trade name, trademark, service mark and/or logo therein) in Postmedia’s own print, digital, video and website marketing, promotion and advertising campaigns for Postmedia’s own products.

 

6.4 License to Customer Data. As part of the Campaign initiation process and from time to time during the Campaign, Customer will provide Customer Data to Postmedia, which Postmedia will input into one or more third-party web-based marketing platforms. Accordingly, Customer hereby permits and directs Postmedia to input Customer Data, including, without limitation, Customer contact information, credit card or automated clearing house information and Campaign information, into the Platform. Postmedia will only use such information in connection with the fulfillment of the Digital Marketing Services and as otherwise permitted by the Sales Agreement and these DMS Terms & Conditions. In addition, Postmedia may, from time to time, send Customer emails regarding Platform updates, Campaign updates, and marketing opportunities relating to Postmedia and its commercial partners. Customer may opt-out of receiving communications not directly related to the provision of the Digital Marketing Services by Postmedia.

7. Ownership and Proprietary Rights.

 

7.1 Marketing Services, Platform, Work Product and Third Party Technology. As between Customer and Postmedia, Postmedia owns all right, title and interest in and to the Digital Marketing Services, the Platform, Work Product and Custom Work Product (excluding any Customer Materials incorporated therein) and the Third-Party Technology, including any modifications and derivative works thereto, and intellectual property rights in and to the same (including moral rights). With specific reference to the Call Tracking Services, and without limiting the generality of the foregoing, Customer does not own any phone number assigned to it during the Term, or otherwise deployed during a Campaign, and Customer shall not include the Campaign phone number in any print or online directory or listing service; such phone number may only be used by Customer during the Term.

7.2 Customer Site, Customer Data, Customer Materials. As between Postmedia and Customer, Customer shall own all right, title and interest in and to the Customer Site, Customer Data and the Customer Materials.

7.3 Hosted Site. Customer’s ownership in the Hosted Site vests in Customer after all payments for year one (1) of the applicable Responsive Website(s) and Hosting Service(s) have been made in full. Upon the expiry or termination of the Term or upon a Discontinuation of Services and provided all outstanding Fees have been paid and satisfied, Customer may request Postmedia to transfer domain ownership within ten (10) business days of said expiry, termination or Discontinuation of Services at the sole cost of the Customer.  For greater certainty, the foregoing transfers have been completed, both domain and website ownership of the Hosted Site shall vest in the Customer.

7.4 Social Media Accounts. If Postmedia sets up a Social Media Account for Customer, Customer’s ownership in the Social Media Account vests upon the expiry or termination of the Sales Agreement and full payment by Customer of all applicable Fees specified in the Sales Agreement and Postmedia shall deliver all Credentials to Customer. 

 

7.5 Analytics Data. Postmedia shall own all Analytics Data generated by the Digital Marketing Services. Customer may access the Analytics Data during the Term.

8. Data Privacy.

8.1 Customer Privacy Policy. Customer shall, at all times, comply with and post a privacy policy on its website (including any Customer Site or Hosted Site), which privacy policy shall comply with all applicable laws (including all Privacy Laws) and shall not contain any terms that are inconsistent with, or would otherwise restrict Postmedia from performing its obligations hereunder. In addition, to the extent any Customer Site or Hosted Site collects personally identifiable information, Customer’s privacy policy must notify its users and customers that such information may be transmitted through or processed by third party provider sites. If Customer purchases Postmedia’s advertising retargeting display service, Customer is obligated to ensure that its privacy policy permits the behavioral targeting contemplated by such service. Customer acknowledges and agrees that its failure to ensure that its privacy policy complies with the foregoing requirements may expose Postmedia to liability which shall be fully indemnified by Customer. If Customer’s privacy policy does not comply with the foregoing requirements, Postmedia shall be entitled to cease providing the Digital Marketing Services until such time as Customer is compliant.

 

8.2 Postmedia Privacy Policy. By purchasing any of the Digital Marketing Services or submitting any personal information for any reason, the Customer confirms its agreement to the terms and conditions of Postmedia’s privacy policy, as amended from time to time, available here: https://www.postmedia.com/privacy-statement/#:~:text=We%20obtain%20your%20consent%20for,that%20you%20have%20consented%20to.

 

8.3 Customer Use of Analytics Data. To the extent that any Analytics Data is comprised of Personal Information, Customer agrees that it will not: (i) use the Digital Marketing Services to collect Analytics Data except as expressly permitted by Privacy Laws; or (ii) use the Analytics Data in ways that are contrary to Privacy Laws and Customer’s own privacy policy.

9. Other Terms and Conditions Applicable to Certain DMS Services.

9.1 Search Engine Marketing Services.

9.1.1 SEM Services include: monitoring Customer’s spend, reviewing selected groups of keywords, conducting competitive analysis against ‘in-market’ competitors to determine recommended keyword lists, managing Customer’s campaign on a weekly basis to monitor for overspend or underspend, using best practices to identify where budgets should be increased or decreased for keyword arrangements, and making and acting on recommendations to improve the performance of the campaign (as measured by factors such as cost per click, click through rate, etc.).

9.1.2 If SEM Services are purchased in a Sales Agreement, Customer hereby appoints Postmedia as its representative for the purpose of performing the SEM Services, including the operation and/or creation of those advertising media accounts described below. The SEM Services may be subject to any additional terms and conditions of the applicable third-party vendor who provides one or more of the products and services purchased by Customer hereunder.

 

9.2 Google Ads Services. 

9.2.1 SEM Services may include services related to the purchase of Google Ads, which services are subject to the following terms and conditions, and any other terms and conditions included in the Sales Agreement. Postmedia is a Google Partner.  In connection with Postmedia’s sale of Google Ads Services, Postmedia may charge a management fee as part of the Fees. For additional information on Google’s third party partner programs, please click here: https://partnersdirectory.withgoogle.com/partners/3797061498.

 

9.2.2 For the purposes of this Section 9.2, “Account” shall mean a Customer’s existing Google Ads account and/or a Google Ads account set up by Postmedia for Customer under this Agreement.

 

9.2.3 Existing Accounts. Postmedia will set-up Customer’s Google Ads campaign during the period specified in the Sales Agreement, using the Google Ads management portal. By signing the Sales Agreement Customer agrees to Postmedia accessing its Google Ads account (via the Google Ads management portal) for the duration specified in the Sales Agreement for the SEM Services (“Google Ads Duration”). Customer shall provide Postmedia with passwords and such other access as it may require in performing the SEM Services, and Customer shall limit its own access to its Google Ads account to “read-only” so that it cannot make Ads purchases from its own Account. The reason for limiting the Customer’s access to its own Account is to enable Postmedia to properly manage the Account on Customer’s behalf.

 

9.2.3 New Accounts. If Customer does not have a Google Ads account, Postmedia will set up a Google Ads account from which it will purchase Google Ads on behalf of Customer during the Google Ads Duration specified in the Sales Agreement.

 

9.2.4 Ownership of Accounts. Customer shall own any Google Ads Account which it has already established prior to the commencement of the Google Ads Duration. In the case of any Google Ads Account which is set-up by Postmedia to purchase Google Ads on Customer’s behalf during the Google Ads Duration, upon expiry or termination of the Google Ads Duration, as applicable, the Customer’s ownership with respect to the Account will be as follows:

For Leader, Advanced and Premium Account Package with Google Ads Duration of 6 months or less:

For Leader, Advanced and Premium Account Package with Google Ads Duration of 6 months or more: Postmedia will provide Customer with the Customer ID and login credentials for the Account, together with all Campaign data accumulated within the Account during Google Ads Duration.

For Start Account Packages: no ownership rights shall accrue to the benefit of Customer and Customer will not be provided with the Customer ID or login credentials for the Account or any Campaign data within the Account.


9.3 Social Media Advertising. If Customer purchases Social Media Advertising services, Postmedia will create and manage advertising campaigns for Customer’s business and Customer hereby agrees to be bound by any additional terms and conditions as required by such social media platform from time to time. Additionally, Postmedia cannot control who may “share” or otherwise forward Customer’s Facebook advertisements.


9.4 Customer Support Services.  If customer support is available in respect of one or more Digital Marketing Services, the contact details for the applicable support services will be set out in the applicable Sales Agreement.

10. Other. 

 

10.1 Amendments. Postmedia may, in its sole and absolute discretion, change or modify theses DMS Terms and Conditions at any time, including without limitation by posting revised terms on its website at URL https://www.postmediasolutions.com/en-ca/dms-terms-conditions, which amended terms and conditions shall be effective immediately upon posting and are binding on the Customer and its successors and assigns. In addition, Postmedia may occasionally notify you of changes or modifications to these DMS Terms & Conditions by email.