Definitions & Interpretation
1.1 Definitions. Capitalized terms used but not defined herein shall have the meanings given to them in the Sales Agreement signed (“Sales Agreement”). Capitalized terms defined in the body of these DMS Terms & Conditions (“Agreement”) will have the meanings given to them therein and the following terms have the meanings given to them below.
| “Analytics Services” | Means the installation, setup, and/or support of Analytics and data collection on a Customer’s Website or Google Tag Manager (allows Postmedia advertising teams to manage tracking pixels). |
| “Analytics Data” | means information, statistics analysis and other data about the performance of the Marketing Services and related Campaigns, including data about how users interact with and respond to the Marketing Services. |
| “Campaign” | means Customer’s marketing campaign for its products and services. |
| “Campaign Period” | has the meaning given to it in Section 3.1 below. |
| “Custom Work Product” | means Work Product that the parties agree will be developed for Customer specifically as a “work-for-hire” and the parties shall enter into a separate Statement of Work in relation to such Custom Work Product to set out the applicable deliverables, development fees and Customer’s license rights to such Custom Work Product. |
| “Customer Data” | has the meaning given to it in Section 6.2 below. |
| “Customer Site” | means any website owned and operated by Customer. |
| “Hosted Site” | means any custom website, responsive website, or e-commerce website developed and hosted by Postmedia, for Customer’s use, during the Term of this Agreement. |
| “Marketing Services” or “DMS” | means all digital marketing or advertising services other than advertising on Postmedia’s owned and operated network |
| “Platform” | means the third party supplier web-based marketing platform through which Postmedia makes certain Marketing Services available to Customer. |
| “Term” | As defined in the Sales Agreement. Term can either be a subscription or a campaign depending on the product purchased. Subscriptions automatically renew and campaigns have defined start and end dates |
| “Third Party Content” | has the meaning given to it in Section 4.3 below. |
| “Third Party Technology” | has the meaning given to it in Section 4.1 below. |
| “Work Product” | means any products or deliverables created by Postmedia as part of the Marketing Services and licensed to Customer during the Term |
1.2 Interpretation. For purposes of this Agreement, 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.
Marketing Services
2.1 Throughout the Term, Postmedia shall provide the Marketing Services to Customer in accordance with the terms of the Sales Agreement.
2.2 The Marketing Services include, but are not limited to, the following:
| Call Tracking or Call Tracking Services | If Customer purchases Search Engine Marketing Services (“SEM”), Customer may opt-in to receive Call Tracking Services. The services involve deploying a unique temporary phone number to a Campaign (e.g. a series of advertisements) in order to measure the traffic generated by the Campaign. If Customer elects to receive this service, then in addition to this Agreement, Customer is thereby agreeing to the Third Party Supplier’s terms of service, including without limitation, those located at this link: https://www.callrail.com/legal/ |
| Digital Audio Advertising (“DAA”) | This service involves Postmedia recording audio ads and building campaigns that serve those ads to free listeners on Spotify, SoundCloud, and other digital streaming services. The Starter package only involves placing ads on Spotify. The leader package places ads on both Spotify and SoundCloud. |
| Digital Out-of-Home (“DOOH”) | This service includes serving digital ads that appear on digital Out-of-Home screens. Postmedia will design the creative if necessary, and manages the targeting of ads, measuring results, and delivering reports. |
| Postmedia Hub | Customer shall have password protected access to the Postmedia Hub where data relating to Customer’s Campaigns and/or Marketing Services shall be available to Customer. |
| Dynamic Inventory Advertising | Dynamic Inventory advertising are ads delivered on performance platforms (Facebook, Google, Programmatic) that leverage a Customers’ inventory to deliver advertising unique to the web browsing history individuals to whom ads are served. |
| Social Media Advertising (SMA) | This service includes the design and management of paid ads for Customer on social networks such as Facebook, Intragram, Linkedin, Pinterest, Twitter, or other platforms. |
| Local Search Optimization (“LSO”) | This service aims to ensure that accurate business information is syndicated across selected online properties in order to increase the opportunity for businesses to be found through search engines and online directories. This service includes listing management otherwise known as list optimization. The Customer can pick from various directory packages where the listing information will be syndicated. Some packages also include review monitoring. |
| Responsive Website(s)and Hosting | This service is Postmedia’s website creation service, where Postmedia creates, designs, and hosts a responsive website (the “Hosted Site”) for Customer during the Term, and provides access to a WordPress content management system to publish content on the Hosted Site. |
| Search Engine Marketing (“SEM”)/Google Ads | This service (also known as Pay per Click advertising) is the process of gaining targeted website traffic by purchasing ads on search engines. Postmedia will consult, set up and run a SEM marketing campaign through Google Ads and other search engines. This service is further described in Section 15 below. If Customer purchases Search Engine Marketing services, it may also opt to receive Call Tracking Services. |
| CSearch Engine Optimization (“SEO”) | This service is Postmedia’s Search Engine Optimization product, where Postmedia will work with the Customer to improve the organic ranking and traffic of Customer’s Website. |
2.3 New and Additional Services. As Postmedia adds additional products and services to its portfolio, any additional terms and conditions will be either 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 this Agreement.
Customer Obligations – Marketing Services and Campaign Logistics
3.1 Set-Up Period, Campaign Set-Up Period. Customer acknowledges and agrees that, with respect to the Marketing Services, Postmedia may take up to ten (10) business days or longer (if Postmedia has been asked to provide creative services or if Postmedia experiences technical difficulties with Customer’s Campaign or in the event of Force Majeure) to review and prepare the Campaign and may require further input from Customer before the Campaign is launched (the “Set-Up Period”). Customer further acknowledges and agrees that the Set-Up Period will commence upon Postmedia’s acceptance of a sales agreement executed by Customer.
3.1.1 Postmedia may send certain deliverables in draft form (the “Proof”) via email to Customer for its review and approval. Customer agrees to provide written notice to Postmedia either approving or rejecting the Proof (in whole or in part) within the timeline, and as per the process defined within the relevant service level agreement (the “Set-Up Notice Period”). If Customer fails to provide written response within the Set-up Notice Period, the Proof will be deemed “approved” by Customer and/or Postmedia will use its best judgment to select an appropriate template for the Customer.
3.2 Acceptance. Any deliverables provided by Postmedia to Customer (including any Work Product and Custom Work Product) shall be deemed accepted on the earlier of: (i) written notice by Customer to Postmedia of such acceptance; or (ii) Customer’s use of the deliverables.
3.3 Go-Live Period. Once the Set-Up Period is done, and the Work Product is completed and ready to “go-live,” certain log-in information or domain name information may be requested from the Customer and is 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. If at a future date, the log-in information or domain name information is received from the Customer, the fulfilled Work Product will be made live.
3.4 Delivery of Customer Materials and Creative. Delivery of Customer Materials. Customer will deliver all Customer Materials required for the Marketing Services (whether for Digital Audio Advertising, Digital Out of Home, or any other relevant campaign) to Postmedia within the timeline, and as per the process defined within the relevant service level agreement If the Customer Materials do not conform to Postmedia’s specifications, then Postmedia may, in its sole discretion, modify or reject such Customer Materials to meet Postmedia’s other technical requirements or to address Campaign performance issues. If rejected, Postmedia will then refund any applicable amounts paid in advance. Customer acknowledges and agrees that Postmedia shall not be liable for typographical errors, incorrect insertions or omissions already contained within any of the Customer Materials, inventory databases or data fees provided by Customer under this Subsection 3.4. Failure by Customer to submit the Customer Materials within the applicable deadlines shall relieve Postmedia from any obligation 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 Postmedia Creative Services. If Customer requests that Postmedia create any Work Product or Custom Work Product for Customer, 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, and liable for any and all claims and damages for failure to do so.
3.6 Advertising Placement. Customer understands and agrees that all digital advertising displayed and all Digital Out-of-Home Advertising displayed through Postmedia’s programmatic trading desk is placed for best optimization based on Third Party Technology (defined below) 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 seek to comply with advertisement placement requests and other stipulations that appear in a Customer’s 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 Fees paid in the event that Postmedia is unable to provide the requested advertisement placement.
3.7 Domain Name Registration. In the event that Customer purchases any Marketing Services which include the development and hosting of a website, or e-commerce website (“Site”), Customer shall be responsible for: (i) registering a domain name for the applicable Site which registration shall remain in good standing throughout the Term; and (ii) the applicable domain server name DNS hosting. Customer is also responsible for either managing the configuration of their domain name, per requests from Postmedia OR providing Postmedia the needed access so we can correctly point the domain name when necessary.
Third Party Suppliers’ Products and Services – Customer Obligations
4.1 Third Party Suppliers and Third Party Technology. 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 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. To the extent that 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.
4.2 Third Party Platforms. To the extent that the Marketing Services involve the use of or participation in third party social media platforms (such as Facebook, Twitter, LinkedIn or other similar platforms) Postmedia and Customer each agree to comply with the terms of use governing those platforms.
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. You acknowledge 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 this Agreement.
Term, Cessation, or Modification of Marketing Services and Discontinuance of Service
5.1 Cessation or Modification of Marketing Services. Postmedia reserves the right, and Customer acknowledges and agrees, that Postmedia may cease to provide any or all of the Marketing Services at any time, and 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 and/or as a result of such discontinuance (a “Discontinuation of Service”). In the event of a Discontinuation of Service, Postmedia shall provide Customer with notice of same; any un-billed fees applicable to the Marketing Services that are subject to a Discontinuation of Service shall cease to become due and payable.
5.2 Effect of Termination. Upon termination or expiry of this Agreement for any reason, or in the event of a Discontinuation of Service, the following provisions shall apply:
Immediately following the termination of the Sales Agreement, or any particular Marketing Service, Customer must cease using the Marketing Services and any Work Product provided in connection therewith. Additionally, Customer will be responsible for returning or, at the direction of Postmedia in its sole discretion, destroying or deleting, any Postmedia Intellectual Property or other Postmedia materials related to this Agreement or the particular Marketing Service, as applicable. Postmedia’s right to suspend access to or terminate the Marketing Services or this Agreement shall not absolve Customer of any outstanding Fees or indemnification obligations in this Agreement, or diminish any other remedy available to Postmedia.
5.3 Call Tracking: Customer must cease using any telephone numbers assigned to it as part of the call tracking service
5.4 Digital Audio Creative: Customer may not use digital audio creative produced by Postmedia for purposes other than the DAA campaign purchased by the client, without prior written approval.
5.5 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 Marketing Services, including, for instance, cached versions of pages from Customer websites may continue to be available from the internet following termination of any of the Marketing Services and/or this Agreement. Customer shall be responsible for contacting search engines to have such pages removed.
Licenses
6.1 License to Platform, POSTMEDIA HUB and Work Product. Upon execution of the Sales Agreement, Customer will be granted a revocable, non-transferable, non-exclusive, royalty-free, limited license (“License”) to use the Platform and the POSTMEDIA HUB solely for the purpose of accessing Analytics Data and other reports and statistics related to the performance of Customer’s Campaigns/Marketing Services (“Campaign Reporting”). The license to the Platform and the POSTMEDIA HUB is granted on an ‘as is’ basis. Access to the Platform, the POSTMEDIA HUB and the Campaign Reporting is solely at the risk of the Customer including without limitation the risk that the Campaign Reporting is inaccurate or incomplete or that the Campaign Reporting and transmission thereof may be corrupted or contain viruses, bugs or other defects. 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 the Customer. Customer’s access to the Platform and the POSTMEDIA HUB shall be password protected and Customer agrees that it shall not share its password with third parties or otherwise provide access to the Platform and/or the POSTMEDIA HUB 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 and the POSTMEDIA HUB 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 or the POSTMEDIA HUB. 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 Marketing Services. Use of the Platform and the POSTMEDIA HUB may be subject to additional terms and conditions required by a Third Party Supplier. Additionally, to the extent that the Marketing Services involve the creation of any Work Product, upon execution of a sales agreement, Customer will be granted a License to the Work Product specified in the Sales Agreement. Postmedia may terminate the foregoing Licenses, at any time and for any reason.
6.2 License to Customer Data. As part of the Campaign initiation process and from time to time during the Campaign, Customer will provide certain information, including certain personal information, to Postmedia (the “Customer Data”), which Postmedia will input into one or more third party web-based marketing platforms. Accordingly, Customer hereby permits Postmedia to input Customer Data, including, without limitation, Customer contact information, credit card or automated clearing house (ACH) information and Campaign information, into the Platform. Postmedia will only use such information in connection with the fulfillment of the Marketing Services and as otherwise permitted by the Sales Agreement and this Agreement. 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 Marketing Services by Postmedia.
Ownership/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 Marketing Services, the Platform, the Work Product (excluding any Customer Materials incorporated therein) and the Third Party Technology, including any modifications and derivative works thereto, and any Intellectual Property Rights in and to the same. 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 Materials. As between Postmedia and Customer, Customer shall own all right, title and interest in and to the Customer Site and the Customer Materials. For clarity, some services such as responsive websites and Custom Websites, Customer’s ownership vest after the payments for year one (1) of the service have been made in full.
7.3 Social Media Accounts. Customer shall own all Social Media Accounts (defined below) subject to: (i) payment by Customer of all applicable fees specified in the Sales Agreement; and (ii) its compliance with any terms and conditions of ownership set out in the applicable aales agreement and the terms of this Agreement.
7.4 Analytics Data – Postmedia shall own all Analytics Data generated by the Marketing Services. Customer may access the Analytics Data during the Term.
Permissions
8.1 Permission to Access Accounts. If Customer purchases 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 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 (“Credentials”) to perform the Marketing Services. If Postmedia sets up a Social Media Account for Customer, subject to payment by Customer of all applicable Fees, upon the expiry or termination of this Agreement, Postmedia shall provide Customer with all Credentials required to operate the Social Media Account going forward.
Privacy Considerations
9.1 Customer Privacy Policy. Customer shall, at all times, post a privacy policy on its website (including any Customer Site or Hosted Site) and comply with such privacy policy. The 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 that the website 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 Marketing Services until such time as Customer is compliant.
9.2 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 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.
Additional Service-Specific Terms and Conditions
10.1 Search Engine Marketing Services (“SEM Services”). If purchased through a sales agreement, Postmedia will provide Customer with the SEM Services described in this Section 10.1. 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.
10.2 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.).
10.3 Google Ads Services. If purchased by Customer, 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.
10.4 The Postmedia is a “Google Premiere 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://www.google.com/partners/work-with-a-partner/
10.5 For the purposes of this section, “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.
10.6 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 the SEM Services. Customer shall provide Postmedia with passwords and such other access as it may require to perform 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.
10.7 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 duration specified in the applicable sales agreement.
10.8 Ownership of Accounts: Customer shall own any Google Ads Account which it has already established prior to the commencement of the 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 Duration, upon expiry or termination of the Duration, as applicable, the Customer’s ownership with respect to the Account will be as follows:
10.9 Leader, Advanced and Premium Account Package with Duration of 6 months or less:
10.10 If Set-Up Fee Paid by Customer: Postmedia will provide Customer with the unique ID of a Google Ads Account (“Customer ID”) and login credentials for the Account, together with all Campaign data accumulated within the Account during the Duration.
10.11 If No Set-Up Fee Paid by Customer: Postmedia will provide Customer with the Customer ID and login credentials for the Account, however, all Campaign data accumulated within the Account during the Duration shall be deleted from the Account.
10.12 Leader, Advanced and Premium Account Package with 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 Duration.
10.13 Starter 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.
10.14 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.
Customer Support
11.1 If customer support is available in respect of one or more Marketing Services, the contact details for the applicable support services will be set out in the applicable Sales Agreement.