These Advertiser Terms and Conditions set forth the terms and conditions upon which Chameleon may deliver Advertiser’s Campaign. The terms and conditions of these Advertiser Terms and Conditions are fully incorporated into and integrated with the Insertion Order, and are applicable to all follow-on business Advertiser does with Chameleon, whether for modification of the first Insertion Order, or additional advertising campaign requests made from time to time by Advertiser and accepted by Chameleon. Capitalized words used in this Agreement shall have the meanings ascribed to them in Section 2 below.
Terms & Conditions
“Chameleon” means Chameleon Digital Media, a division of Adapt Media Inc. a Federally Incorporated Canadian Company.
“Advertisement”means all written or graphically rendered marketing materials provided for in an Insertion Order (including but not limited to banners, text or graphic links, pop-ups, emails and newsletters or any other similarly designed advertising format).
“Advertiser means the advertiser or the client for whom an Agency is the legally authorized agent under an applicable IO which authority provides Agency the right to enter into and bind Advertiser in respect of media placement agreements. Media Company reserves the right to request proof from Agency to evidence any such authority.
“Agreement” means these Terms and Conditions and each Insertion Order that references these Terms and Conditions.
“Agency” means the advertising agency, if any, listed on the applicable IO.
“Business Day” means a standard work day (between 9am-5pm of each office’s time zone) and does not include statutory holidays, Saturdays, or Sundays.
“Campaign” means the specifications and period upon which Advertisements will be placed by Chameleon as set forth in the applicable Insertion Order or follow-on request for additional services.
“CPA Deliverables” means Deliverables sold on a cost per acquisition basis (e.g. newsletter sign-up, contest entry, lead, etc.)
“CPC Deliverables” means Deliverables sold on a cost per click basis.
“CPM Deliverables” means Deliverables sold on a fixed cost per thousand impression basis.
“eCPM Deliverables” means Deliverables sold on an estimated cost per thousand impression basis.
“Deliverable” or “Deliverables” means the inventory delivered by Chameleon (e.g. impressions, clicks, or other desired actions).
“Confidential Information” means any information disclosed by either party to the other party that is designated as “Confidential,” “Proprietary,” or some similar designation. Information communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information within 120 days after the oral disclosure.
“Insertion Order” means an order document signed by Advertiser (or, if applicable, Agency) and tendered to Chameleon requesting specific Advertisements and/or Campaigns.
“Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Chameleon’s public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Site on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates.
“Representatives” when used with respect to either party, means that party’s affiliates, agents, officers, directors, consultants and employees.
“Service” means the placement of the Advertisements provided by Advertiser according to the applicable Insertion Order.
“Taxes” means any government imposed taxes or charges imposed on Advertiser pertaining to the performance of this Agreement, including but not limited to value added, sales, use, withholding, and excise taxes.
“Third Party” means an entity or person that is not a party to an IO; for purposes of clarity, Media Company, Agency, Advertiser, and any Affiliates or Representatives of the foregoing are not Third Parties.
“Terms and Conditions” means these Advertiser Terms and Conditions.
Design Services.Chameleon will reasonably cooperate with Advertiser to develop a creative for the maximum effectiveness of Advertisements.
Advertisement Modification. Advertiser permits Chameleon, with Advertiser’s prior approval (email shall suffice), to change any Advertisement as deemed necessary in Chameleon’s reasonable judgment; provided, however, that where a change made is within the parameters of any restrictions or permissions set forth in an applicable, signed Insertion Order, no additional Advertiser approval is required. Absent express notation in an Insertion Order, Advertiser is responsible for submitting all artwork, active URLs and active target site for each Advertisement in accordance with the requirements stipulated in the Insertion Order and Chameleon’s other criteria, which may be provided to Advertiser on an as-needed basis.
Content.Chameleon will not accept or place any Advertisement that, in Chameleon’s sole determination and discretion or in the discretion of any of its publishers contains, promotes or links to inappropriate content which includes, but is not limited to: content regarding use of alcohol, tobacco or illegal substances; nudity, sex, pornography, or adult-oriented content; expletives or inappropriate language; content promoting illegal or unethical activity, racism, hate, “spam,” mail fraud, pyramid schemes, credit-repair or advice not permitted under law; content that is libelous, defamatory, infringing, false, misleading, contrary to public policy, or otherwise unlawful; content which includes diversionary links, exit “pops” or any other element which distracts from the primary advertisement content; content which may bring Chameleon and/or its affiliated companies negative publicity, or any other content deemed inappropriate by Chameleon in its sole discretion.
Placement and Positioning. Chameleon will use reasonable commercial efforts to comply with the Advertisement specifications contained in the Insertion Order, including all placement requests. Advertiser hereby acknowledges and agrees that Chameleon does not control Advertisement placements, and cannot guarantee any particular Advertisements placement, or its physical positioning on any website. Chameleon reserves the right to reject, not publish, or not place any Advertisement at any time in its sole discretion. A decision by Chameleon to not publish or not place any requested Advertisement does not constitute a breach of this Agreement or otherwise entitle Advertiser to any legal remedy, provided an appropriate refund will be made for any prepayment by Advertiser for the applicable portion of the Campaign.
Not Binding. No Insertion Order or request for additional services are binding on Chameleon until Advertiser receives a copy of the Insertion Order signed by an authorized Chameleon officer or, in follow-on to an initial Insertion Order on file with Chameleon, Advertiser receives written acknowledgement and confirmation from Chameleon for the additional services (email shall suffice). Chameleon may reject any Insertion Order or request for additional services or Services for any or no reason.
Provision of Services. Advertiser acknowledges and agrees that Chameleon may provide the Services directly and/or via third party.
Campaign Term. Chameleon will use commercially reasonable efforts to have Advertisements placed on the Campaign start date
requested in the applicable Insertion Order, and unless terminated as provided in this Agreement, Advertisements will remain placed for the Campaign period designated in the applicable Insertion Order. Unless specifically prohibited in the applicable Insertion Order, Chameleon reserves the right to extend the Campaign in order to deliver the Advertisements in compliance with the specifications set forth in such Insertion Order.
Campaign Modifications and Cancellation. Unless expressly prohibited in the applicable Insertion Order, Advertiser may terminate an Insertion Order or one or more Campaigns within an Insertion Order upon three (3) business days advance written notice to Chameleon. Unless prohibited in the applicable Insertion Order, Advertiser will continue to be responsible for all deliverables (impressions, leads, clickthroughs or installations) associated with all insertions under a Campaign until such termination is effective. Chameleon may terminate this Agreement, any Insertion Order or any Campaign for any or no reason upon written notice to Advertiser.
Compliance with Laws. Advertiser and Chameleon will comply with all applicable laws, rules, and regulations.
Payment Terms.Advertiser agrees to pay to Chameleon the amounts as reported in Chameleon’s reporting portal. Unless otherwise agreed in an Insertion Order, all payments are due within 30 days from the date of each invoice; alternate or additional pre-payment or deposit terms may be indicated on the applicable Insertion Order. Payments may be made to Chameleon via wire transfer, cheque, or PayPal, unless otherwise required by Chameleon. Advertiser acknowledges that where any Insertion Order contains staged payments and any such payment is overdue, Chameleon is not required to continue to perform Services until all payments due are paid up to date. Chameleon may, in its sole discretion, extend, limit, revise or revoke credit terms to Advertiser. In addition to the foregoing, on any past due invoice, (i) Chameleon may charge interest from the payment due date to the date of payment (at 1.5% per month, or the highest rate permitted by law, if less), plus reasonable attorney’s fees, disbursements and collection costs, and (ii) Chameleon may offset that amount from any payment otherwise owed by Chameleon or any parent, subsidiary, or affiliate of Chameleon to Advertiser or any parent, subsidiary, or affiliate of Advertiser. Advertiser is responsible and shall pay for all Taxes in connection with Advertiser’s performance hereunder. Payments due under this Agreement are exclusive of Taxes, unless otherwise agreed in writing by Chameleon. If Advertiser prepays Chameleon for the Services, any amount remaining in Advertiser’s account under CDN$75 after termination or expiration of this Agreement shall be forfeit to Chameleon. Chameleon’s sole obligation shall be to mail one check, first class, to the last known address of Advertiser for any greater amount.
Chameleon may require that Advertiser install a tracking pixel which will be provided by Chameleon with the criteria to track valid installations. Advertiser is solely responsible for installation and use of any tracking pixel and may not make any modification to such tracking pixel. Installations will be deemed valid as tracked by the tracking pixel. In the event that the tracking pixel is not properly installed or of any unauthorized modification made by Advertiser, Advertiser shall have three calendar days to correct the same and notify Chameleon of such correction. Chameleon uses a 30-day click cookie for conversion attribution, meaning that after a consumer or user clicks on an Advertisement, firing of the tracking pixel within 30 days of that click date shall constitute a conversion for purposes of this Agreement. Any reasonable determination of Chameleon as to the number of installations shall be binding on the parties absent manifest error on the part of Chameleon as reasonably demonstrated by Advertiser.
(a) Each party agrees that, for a period of two (2) years from the receipt of any Confidential Information from the other party hereunder, the receiving party shall use the same means it uses to protect its own confidential proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the Confidential Information of the disclosing party. The obligations of each receiving party hereunder shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known and generally available through no action or inaction of the receiving party. Confidential Information does not include information that the receiving party can document (i) is or becomes (through no improper action or inaction of the receiving party or its Representatives) generally known by the public, (ii) was in its possession or known by it without restriction prior to receipt from the other party, (iii) is independently developed by the receiving party without use of or reference to the Confidential Information of the other party, or (iv) becomes available to it from a source other than the other party or its Representatives having no obligation of confidentiality. Each party will be responsible for a breach of this Agreement by any of its Representatives. Each party shall promptly notify the other party upon discovery of any unauthorized use or
disclosure of Confidential Information and will cooperate with the other party in every reasonable way to help regain possession of such Confidential Information and prevent its future unauthorized use. Chameleon Confidential Information includes, without limitation, this Agreement, all information related to the Campaign, and information pertaining to Chameleon’s publishers and other advertisers.
(b) Each party may use Confidential Information received from the other party only in connection with and to further the purposes of this Agreement and may only provide such Confidential Information to its Representatives who have a “need to know” such Confidential Information and who have provided written assurance sufficient to ensure such Representatives’ compliance with, or are otherwise obligated to honour, the terms of this Agreement, or as required by law (provided prompt notice of such required disclosure is provided to the disclosing party prior to disclosure where permissible).
(c) The parties agree and understand that a material breach of this Section 7 will cause the non-breaching party to suffer irreparable harm and that monetary damages may be inadequate to compensate for such damage. Accordingly, the parties agree that in such event, the non-breaching party will, in addition to all other remedies, be entitled to seek preliminary and permanent injunctive relief. The foregoing remedy is a material, bargained for basis of this Agreement and has been taken into account in each party’s decision to enter into this Agreement.
UNDER NO CIRCUMSTANCES WILL CHAMELEON OR ADVERTISER BE LIABLE UNDER ANY CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, REVENUE OR DATA IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. TO THE FULLEST EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL CHAMELEON’S AGGREGATE LIABILITY ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID AND PAYABLE BY ADVERTISER UNDER, OR IN CONNECTION WITH, THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
Each party will indemnify and hold harmless the other party from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by a party (and its successors and assigns) arising out of a third party claim related to the other party’s breach of any provision or term of this Agreement. In addition, Advertiser will indemnify and hold harmless Chameleon from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by Chameleon, and/or its publishers arising out of or relating to (a) the content or subject matter of any Advertisement, Insertion Order or collateral information to the extent used by Chameleon or its publishers in accordance with this Agreement (including, but not limited to, allegations that subject matter violates the rights of a third party, causes emotional or physical injury to any third-party is defamatory or obscene or violates any law, regulation or other judicial or administrative action), or (b) the Advertisers intellectual property, including but not limited to any infringement action, misuse, registration or non-registration.
THE SERVICE PROVIDED BY CHAMELEON, ITS USE AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, CHAMELEON MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. CHAMELEON DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES. CHAMELEON DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF A RESPONDENT. CHAMELEON DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. ALL ORDERS ARE CONTINGENT UPON CHAMELEON’S ABILITY TO PROCURE NECESSARY ON-LINE ACCESS. CHAMELEON WILL MAKE EVERY EFFORT TO MEET SCHEDULED DELIVERY AND ONLINE DATES, BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABILITY FOR ITS FAILURE TO MEET SAID DATES.
Chameleon may terminate or cancel this Agreement or any Insertion Order at any time, in its sole discretion, upon written notice to Advertiser (such notice may be in the form of electronic notification). Advertiser may terminate this Agreement or an Insertion Order or one or more Campaigns within an Insertion Order upon three (3) business days advance written notice to Chameleon.
If this Agreement is being executed by an Agency, Agency hereby represents that it has all due authority to create a legally binding agreement on behalf of Advertiser and this Agreement shall be so binding. Agent further agrees that it will be jointly and severally liable for any and all payments, damages and other liabilities under this Agreement to which Advertiser would be responsible.
The terms of Sections 1, 2, and 7 through 20 of these Terms and Conditions, together with Advertiser’s obligation to make payments to Chameleon under this Agreement for services rendered before the date of termination or expiration.
Advertiser grants Chameleon a limited, revocable, fully-paid, royalty-free, worldwide right and license to display Advertiser’s logo in promotional material to identify Advertiser as a customer of Chameleon. Additionally, Chameleon may reference Advertiser in a general press release which does not reveal any specific terms or conditions of this Agreement, depicting Advertiser’s corporate logo, publicizing the fact that an agreement has been executed. Any other public statement or press release referencing the name or trademark of a party shall only be made upon the express prior written consent of such party.
This Agreement sets forth the entire agreement between the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, communications, and understandings (whether written or oral) between the parties with respect to their subject matter. Neither party has been induced to enter into this Agreement by virtue of, and is not relying upon, any representations or warranties not set forth in this Agreement, any correspondence or communication preceding the execution of this Agreement, or any course of dealing between the parties. The terms and conditions of the Insertion Order shall govern and control to the extent
of any inconsistency between the terms set forth in the Insertion Order and these Terms and Conditions.
This Agreement shall be interpreted and enforced in all respects under the laws of the Province of Ontario, as applicable to contracts to be performed entirely within the Province of Ontario. Any litigation arising out of this Agreement will be brought solely and exclusively in the provincial or federal courts located in Ontario, Canada, and the parties agree that jurisdiction and venue properly lie in such courts, and waive any claim that a proceeding in any such court has been brought in an inconvenient forum.
Except as otherwise expressly stated in this Agreement and except for payment obligations, the parties shall not be liable in damages for any delay or default in performance of this Agreement if such delay or default is caused by unforeseen conditions beyond the reasonable control of the delaying or defaulting party, including acts of God, restrictions by a government authority, wars, revolutions, terrorism, strikes (other than any strike by the delaying or defaulting party’s employees), fires, floods, earthquakes, embargoes, or degradation of telephone or other communications services, including but not limited to, degradation of all or part of an Internet backbone.
Failure by Chameleon to enforce at any time or for any period of time any provisions of this Agreement shall not be construed as a waiver of such provisions, and shall in no way affect Chameleon’s right to later enforce such provisions.
If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable by a court of law, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced if possible by a mutually acceptable provision, which being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.
Chameleon and Advertiser are independent contractors and agree that this Agreement does not establish any agency, joint venture or partnership between them. Advertiser may not assign this Agreement without the prior written consent of Chameleon, which shall not be unreasonably withheld. Any attempted assignment in violation of the preceding sentence shall be null, void and without effect. This Agreement is binding on the successors and permitted assigns of each of the parties. An Insertion Order may only be modified via written notice and the written agreement of both parties (such notice may be in the form of electronic notification). Notwithstanding the foregoing, in the event any modifications requested to an Insertion Order are requested by Advertiser in writing, and such changes are subsequently implemented by Chameleon (with or without any other written confirmation), such modifications will be deemed accepted by both parties. No modification will be effective to this Agreement unless made in writing and signed or acknowledged by both parties (email shall suffice).
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