These Platform Terms of Use (together with the Inbox Matters Digital Privacy Policy, the "Agreement") govern your relationship with Inbox Matters Digital Inc. ("Inbox Matters Digital") relating to the Platform (as defined below) offered by Inbox Matters Digital on the Inbox Matters Digital web site (the "Site") [or on a Inbox Matters Digital mobile application (the "App") owned and operated by Inbox Matters Digital] (including but not limited to Inbox Matters Digital.com and any and all web sites or mobile applications now or hereafter owned or operated by Inbox Matters Digital). The date on which you first log into your Account (as defined below) is hereinafter referred to as the "Effective Date".
Please read this Agreement carefully and be sure you fully understand the terms and conditions contained herein. This Agreement constitutes a binding legal agreement between you and Inbox Matters Digital Inc.
Your use of the Platform constitutes your agreement to all such terms, conditions, and notices in effect at such time. You hereby represent and warrant that (i) you are lawfully able to enter into and perform a legally binding contract, (ii) if you are entering this Agreement on behalf of your employer and you are authorized to do so, and (iii) agree to be bound by this Agreement. Please print a copy of this Agreement and retain it for your records.
You should also read the Inbox Matters Digital Privacy Policy, which is incorporated by reference into this Agreement and available on the Site. If you do not accept and agree to be bound by all of the terms of this Agreement, including the Inbox Matters Digital Privacy Policy, do not access the Platform through the Site, install the App or use the Platform.
Inbox Matters Digital may update or revise this Agreement (including the Inbox Matters Digital Privacy Policy and the Fee Schedule) from time to time. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Platform. You may have to click "accept" or "agree" to show your acceptance of any modified version of this Agreement. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Platform, in which case you will no longer have access to your Account (as defined below). Except as otherwise expressly stated by Inbox Matters Digital any use of the Platform is subject to the version of this Agreement in effect at the time of use.
1. The Platform
Inbox Matters Digital offers a native and video advertising internet-accessible platform (the "Platform") that allows Company to buy, track and manage digital media ("Media") for the purposes of delivering Company's native and video advertisements ("Ads"). Based on Company's specified attributes, the Platform utilizes Inbox Matters Digital's proprietary technology to bid on Media on Company's behalf, and offers manual and automated methods for meeting Company's advertising objectives. All Ads are subject to Inbox Matters Digital's review and approval. Inbox Matters Digital, may, in its sole discretion, decide not to deliver an Ad that it deems to be of poor technical quality, unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another's privacy, hateful, racially, ethnically or otherwise objectionable.
2. Right to Access and Use the Platform
2.1 Right to Use
Subject to the terms and conditions of this Agreement, including the payment of the applicable fees, commencing as of the Effective Date and for the duration of the Term (as defined below), Inbox Matters Digital hereby grants to Company a non-exclusive, non‐transferable, revocable right to access and utilize the Platform in accordance with the terms of this Agreement.
2.2 Restrictions on Use
Any rights not granted herein are strictly reserved by Inbox Matters Digital. Company shall not, and shall not permit any third party to: (a) re-license or sublicense, lease, loan or otherwise distribute the Platform to any third person; (b) use the Platform in the operation of a service bureau; (d) reverse engineer, decompile, disassemble or translate any software used by Inbox Matters Digital to deliver the Platform (the "Software"), or otherwise attempt to view, display or print the Software's source code; (e) remove, modify or obscure any copyright, trade-mark or other proprietary notices contained in the Software.
2.3 Reservation of Rights
Inbox Matters Digital shall retain ownership of all intellectual property rights associated with the Platform, all ancillary documentation and technology associated therewith, and any enhancements or modifications thereof. Neither party shall use the trademarks or trade names of the other without express consent.
2.4 Audit Rights
Inbox Matters Digital reserves the right to monitor and audit Company and its authorized users' usage of the Platform for the purpose of (among others) ensuring compliance with the terms of this Agreement. Any such audit may be carried out by Inbox Matters Digital or a third party authorized by Inbox Matters Digital, at Inbox Matters Digital's expense.
2.5 Accounts
In order to use the Platform, Company must log into an account (an "Account") created for the Company by Inbox Matters Digital using the account login credentials provided by Inbox Matters Digital. Company will be allowed to create one or more administrator accounts (each an "Admin Account") for one or more designated administrators (each an "Administrator") to access the Platform. After the initial log in, an Administrator may assign additional user access to other Company employees, contractors or agents. Inbox Matters Digital is not responsible for dissemination of additional user access, as all requests for additional user access must be routed to a designated Administrator.
2.6 Security Requirement
Inbox Matters Digital shall implement and maintain the appropriate safeguards and controls to deter and for the detection, prevention and correction of any unauthorized intrusion, access or use of the Platform and Company's Ads. Company acknowledges and agrees that notwithstanding the security requirements, such methods and procedures may not prevent unauthorized electronic intruders to access the Platform through the Internet or through other form of electronic communication. Except for the maintenance of appropriate firewall and safeguards in compliance with the security requirements, which are designed to frustrate access from unauthorized electronic intruders, Inbox Matters Digital shall not be liable to Company, and hereby disclaims responsibility, with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.
2.7 Maintenance
From time to time, it will be necessary for Inbox Matters Digital to perform maintenance on its system. Such maintenance includes routine maintenance to ensure the continued provision of the Platform through the continued operation of Inbox Matters Digital's system or upgrading, updating or enhancing its system. Inbox Matters Digital shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of its system to Company. To the extent Inbox Matters Digital is able, Inbox Matters Digital shall notify Company in advance of any scheduled maintenance by posting a message on its website or by sending an email to the designated Company representative of the scheduled maintenance time and the anticipated duration of such maintenance.
3. Company's Rights and Obligations
3.1 Company's Responsibilities
In addition to its other obligations contained in this Agreement, Company shall: (a) be responsible for operating, supporting and maintaining Company's systems, including computer hardware and software, necessary for Company to access the Platform; (b) be responsible for procuring and maintaining communication Platforms, including high speed Internet connections between Company's systems and Inbox Matters Digital's system; (c) assign, record and control the issuance and use of all authorized users; (d) use the Platform, by itself and authorized users in accordance with the terms of this Agreement; and (e) comply, at all times, with all applicable legal and regulatory requirements and with Inbox Matters Digital's conduct and security policies in respect of the use of the Platform.
3.2 Company's Negative Covenants
Company shall not: (a) use the Platform for improper or unlawful purposes; (b) take any action that imposes an unreasonable or disproportionately large load on Inbox Matters Digital's system; (c) use the Platform or the software to develop any derivative works or any functionally compatible or competitive software; or (d) copy or download any software used by Inbox Matters Digital to provide the Platform and which is contained within Inbox Matters Digital's system. In the case of data which may be provided by or provisioned through Inbox Matters Digital, Company shall not: (i) resell, rent, lease, sublicense, or transfer such data to any third party; (ii) use such data in any manner except for marketing purposes and the delivery of online advertisements; or (iii) merge or combine such data with personally identifiable information.
3.3 Representations and Warranties of Company
In addition, Company represents, warrants and covenants that: (a) Ads delivered or served through the Platform will not include any materials or links to materials that are unlawful, harmful, spam, defamatory, libelous, abusive, threatening, pornographic or otherwise objectionable, or infringes or misappropriates the patents, copyrights, trademarks, trade secrets or other intellectual property rights of any person; and (b) none of the Ads will contain any viruses, Trojan horses, worms or other disabling devices or harmful components intended to damage, detrimentally interfere with, intercept, or expropriate any system.
3.4 Ownership of and License to Use Ads
Company shall retain ownership of all intellectual property rights to the Ads and any ancillary advertising materials provided to Inbox Matters Digital. Company hereby grants to Inbox Matters Digital the right and license to promote and market its Ads through the Platform. Company hereby authorizes and grants to Inbox Matters Digital a license to use Company's Ads and any of Company's trade-marks, trade names, Platform marks, logos, character names, and other intellectual property provided by Company in connection with Company's use of the Platform.
4. Fees; Invoicing and Payment
4.1 Fees
Company shall pay Inbox Matters Digital the cost of all Media purchased by the Company through the Platform (the "Fees"). The Fees do not include applicable taxes. Fees are in the currency specified by the Company in the Company's Account.
4.2 Invoices
If Company and Inbox Matters Digital have executed a Prompt Payment Agreement (a "PPA") pursuant to which Company has been approved by Inbox Matters Digital for a credit limit and monthly billing, Inbox Matters Digital shall send Company monthly invoices detailing Company's advertising campaign activities and amounts due for the previous month's advertising campaigns. Inbox Matters Digital's analytics system shall be the sole basis of measurement for the purpose of determining the Fees. If Company has not entered into a PPA, Inbox Matters Digital will not provide a monthly invoice unless requested by Company.
4.3 Payment
Unless the Company has entered into a PPA, Company shall pay the Fees either (a) with the credit card associated with Company's Inbox Matters Digital account and the Fees will be charged to Company's credit card at pre-determined amounts mutually agreed upon by Inbox Matters Digital and Company; or (b) by making a pre-payment of Fees which Inbox Matters Digital may apply to Company's Media purchases, which pre-payment shall be promptly refunded by Inbox Matters Digital upon the request of the Company after payment of any outstanding Fees.
4.4 Currency
For purposes of calculating foreign currency rates for non‐Canadian dollar currencies, Inbox Matters Digital utilizes a risk‐adjusted daily exchange rate. Rates are provided via a daily feed from a reputable exchange rate Platform.
4.5 Taxes
Company shall pay any and all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement including, without limitation, federal, provincial and local, excise, sales, use, goods and Platforms, harmonized, value added and any taxes or other amounts in lieu thereof, except for any taxes based on Inbox Matters Digital's net income.
The fees agreed between the parties in section 4.1 and listed in Exhibit A of this agreement do not include any tax, fees of duties including goods and service tax, any type of sales and use tax or value added tax, personal property, gross receipt, franchise, excise taxes, assessment or duties, or any similar type of tax, or any interest or penalty related thereto (collectively "taxes") which are or may be imposed by law on Inbox Matters Digital, Company or their affiliate, irrespective of whether Inbox Matters Digital needs to collect said taxes or Company is required to account for said taxes and remit them, by any taxing authority or jurisdiction occasioned by, relating to or as a result of the execution of this Agreement or any other matter, good or service provided for under or in connection with this Agreement.
4.6 Interest on Late Payments
Where Company fails to pay any amount in accordance with this Agreement, Inbox Matters Digital shall have the right, in addition to any other rights or remedies available to it, to charge, and Customer shall pay, interest on such overdue amounts at the rate of one percent (1%) per month calculated daily, compounded monthly (12.68% per annum), both before and after any court judgement in respect of the same from the date such payment was due.
5. Privacy and Data
5.1 Privacy
The Inbox Matters Digital Privacy Policy (available at https://www.inboxmattersdigital.com/privacy-policy) applies to the collection, use and disclosure of any personal information that Company or users may provide to Inbox Matters Digital. The parties shall comply with any laws and regulations pertaining to the privacy protection of personal information. Each party shall reasonably cooperate with the other party's specific requests as necessary to facilitate such party's compliance with any applicable privacy laws and regulations.
5.2 Company's Responsibilities
Company shall comply with applicable Data Protection Laws. Company is solely responsible for any data submitted or transferred by Company to Inbox Matters Digital and any data collected by Inbox Matters Digital from or for Company pursuant to or in connection with this Agreement, including personal information ("Company Data").
Company warrants that it will not transfer to Inbox Matters Digital any Company Data that has not been lawfully processed in accordance with applicable Data Protection Laws. For greater certainty, Company warrants that it will obtain opt-in consent from data subjects, where such consent is required by Data Protection Laws, to use any Inbox Matters Digital trackers, including, but not limited to, conversion pixels, retargeting pixels, or look-alike pixels. Company shall also identify any Company Data originating in the European Union, the European Economic Area, Switzerland or the United Kingdom ("EU Company Data") to Inbox Matters Digital. Company acknowledges that failure to properly identify EU Company Data shall result in Inbox Matters Digital rejecting any bid request and receipt of the EU Company Data.
Company understands and acknowledges that Inbox Matters Digital is relying on Company fulfilling its obligations under Data Protection Laws in order for Inbox Matters Digital to fulfill its obligations under this Agreement. Company shall notify Inbox Matters Digital if Company determines, or suspects, an issue or violation with its obligations outlined in this section. Company acknowledges and agrees that company shall fully indemnify, defend and hold harmless inbox matters digital and its officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses and expenses, including, without limitation, reasonable legal fees, arising out of or associated with company's violation of any of company's responsibilities and obligations outlined in this section.
5.3 Processing and Sub-processing
In respect of Company Data, Inbox Matters Digital and Company acknowledge that Company is a data controller and Inbox Matters Digital is a data processor. Inbox Matters Digital shall process Company Data on behalf of Company in accordance with the Inbox Matters Digital Privacy Policy. Inbox Matters Digital will comply with Company's reasonably given and documented instructions regarding the processing of Company Data. Where Inbox Matters Digital receives an instruction from Company that, in Inbox Matters Digital's reasonable opinion, violates applicable Data Protection Laws, Inbox Matters Digital will inform Company. Inbox Matters Digital shall be entitled to use sub-processors to process Company Data on behalf of Inbox Matters Digital.
5.4 Data Subject Rights
Inbox Matters Digital will use commercially reasonable efforts to assist Company fulfill Company's obligations to respond to requests from data subjects to exercise the data subject's rights under Data Protection Laws in Company Data concerning the data subject, to the extent that such assistance is legally permitted and technically possible in the circumstances.
5.5 Security Measures
Inbox Matters Digital will implement and maintain appropriate technical, administrative and organizational measures to prevent unauthorized and unlawful processing of Company Data appropriate to the nature and sensitivity of the Company Data.
5.6 Aggregated Data
Company grants Inbox Matters Digital a non-exclusive, transferable, assignable, irrevocable, royalty-free, worldwide, perpetual license to create aggregated and anonymized Company Data ("Aggregated Data") and to use such Aggregated Data, and all modifications thereto and derivatives thereof, for Inbox Matters Digital's own business purposes. Inbox Matters Digital shall own all Aggregated Data and may transfer or assign any of its rights in the Aggregated Data to any third party.
5.7 Derivative Data
Company understands that the Platform collects aggregated and non-personally identifiable data relating to users use of the Platform, including, but not limited to, non‐personally identifiable information provided by users in response to an Ad ("Derivative Data"). Derivative Data, including all modifications thereto, is and shall be the sole and exclusive property of Inbox Matters Digital, and Inbox Matters Digital shall have the right to use Derivative Data to improve the Platform; develop new products, Platforms and features; understand usage; and and generally for any purpose related to Inbox Matters Digital's business without further obligation to Company. Inbox Matters Digital may transfer or assign any of its rights in the Derivative Data to any third party.
6. Confidentiality
For purposes of this Agreement, "Confidential Information" means any information related to or contained within the Platform, non‐public information, know‐how and trade secrets, whether provided in written or oral form, that is designated as being confidential, or that a reasonable person knows or reasonably should understand to be confidential; provided, however, that the following shall not be considered Confidential Information: information that is, or becomes, publicly available without a breach of this Agreement, was lawfully known to the receiver of the information without an obligation to keep it confidential, is received from another source who can disclose it lawfully and without an obligation to keep it confidential, is independently developed, or is a comment or suggestion one party volunteers about the other's business, products or Platforms. The parties agree to use the Confidential Information solely for the purpose of performing their obligations hereunder. Both parties will refrain from disclosing any Confidential Information to any third party, except to the extent that: (a) such disclosure is necessary to perform its obligations or exercise its rights under this Agreement; (b) such disclosure is required by applicable law, provided that the party required to make such disclosure must use reasonable efforts to give the other party advance notice thereof so as to afford that party an opportunity to seek an order or other relief for protecting its Confidential Information from any unauthorized use or disclosure and the Confidential Information is only disclosed to the extent required by law; (c) such disclosure is made with the consent of the disclosing party; (d) such disclosure is to employees, consultants or agents of the disclosing party who have a need to know such confidential information in order to assist the disclosing party in carrying out its obligations hereunder; or (e) such disclosure is (i) to legal counsel of the Parties; or (ii) in confidence, to accountants, banks, proposed investors, acquirers and financing sources and their advisors.
7. Warranty Disclaimer
The platform is provided "as is" with no warranty, express or implied, of any kind and inbox matters digital expressly disclaims any and all warranties of merchantability, fitness for a particular purpose, availability, security, title and/or non-infringement. under no circumstances will inbox matters digital be liable for the results of company's use or misuse of the platform, including any use contrary to law.
8. Indemnification
Company agrees to indemnify, defend and hold harmless Inbox Matters Digital and its officers, directors, employees and agents from and against any third party claims, liabilities, damages, losses and expenses, including, without limitation, reasonable legal fees, arising out of or in connection with: (a) Company's use of the Platform; (b) Company's violation of any terms or conditions of this Agreement; or (c) any claim that Company's Ads violate applicable laws or regulations, or any rights of another person or entity, including without limitation, any intellectual property rights.
9. Limitations on Liability
Other than with respect to the indemnification obligations under sections 5.2 and 8 or a breach of the confidentiality obligations under section 6, in no event will either party, their affiliates or their respective agents be liable to the other for any lost profits or any special, incidental, consequential, exemplary, punitive or other indirect damages of any nature, for any reason, whether based on breach of contract, tort (including negligence), or otherwise and whether or not either has been advised of the possibility of such damages. notwithstanding any other provisions of this agreement, in no event will inbox matters digital's aggregate liability to company and any third party in connection with this agreement or company's access to and use of the platform exceed the total amount paid by company to inbox matters digital in the six (6) month period preceding the claim or action.
10. Term and Termination
10.1 Term
This Agreement shall commence on the Effective Date, and will remain in full force and effect until and unless terminated as set forth herein ("Term").
10.2 Termination
Either party may terminate this Agreement: (a) immediately upon notice if the other party materially breaches any of its obligations hereunder and fails to cure such breach within seven (7) days following written notice; or (b) immediately upon notice in the event of the suspension of business, insolvency, institution of bankruptcy or liquidation proceedings by or against the other party. Company or Inbox Matters Digital may terminate this Agreement at any time by giving written notice of termination to the other party. Following any termination for convenience pursuant to this section 10.2, both parties shall endeavour in good faith to honour any existing campaigns, open orders, outstanding invoices known to exist on the date of notice of termination and Customer shall promptly pay any outstanding Fees.
10.3 Suspension
Not with standing the foregoing, Inbox Matters Digital may suspend or terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if Company: (a) fails to pay in full any sum owing by it under this Agreement by the due date thereof and such failure continues for a period of five (5) business days after delivery of a written notice by Inbox Matters Digital requiring Company to correct such failure; (b) infringes the intellectual property rights of Inbox Matters Digital; or (c) if Inbox Matters Digital has reason to believe that Company is using the Platform for any improper or unlawful purpose.
10.4 Effect of Termination
Upon termination of the Agreement: (a) all rights of Company under the Agreement will terminate; and (b) Inbox Matters Digital's obligations relating to the Platform will terminate.
11. Miscellaneous
11.1 Notice
All notices and other information to be given by one of the parties to the other shall be given by hand delivery or e‐mail to the other party at the email address or address set forth below on the signature page. Notices sent by e‐mail shall be deemed to have been received by the party to whom it was addressed on the date of transmission or receipt, or if sent on a day that is not a business day or after normal business hours, on the first business day following transmission or receipt. Notices sent by hand delivery shall be deemed to have been received on the date of delivery. Any notice of change of address by a party shall be effective only upon receipt of a notice provided to the other party in accordance with the provisions of this Section 11.1.
11.2 Marketing and Publicity
Without Inbox Matters Digital's prior written consent, Company shall not release any information regarding any Ads or Company's relationship with Inbox Matters Digital or its customers, including, without limitation, in press releases or promotional or merchandising materials. Inbox Matters Digital shall have the right to refer to its work for and relationship with Company for marketing and promotional purposes. No stand‐alone press releases or general public announcements shall be made without the mutual consent of Inbox Matters Digital and Company.
11.3 Entire Agreement
This Agreement, together with the Exhibits and any other documents to be delivered pursuant hereto, constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the parties.
11.4 Modifications
The parties may modify this Agreement only upon written agreement.
11.5 Further Assurances
Each party shall take such action (including, but not limited to, the execution, acknowledgement and delivery of documents) as may reasonably be requested by the other party for the implementation or continuing performance of this Agreement.
11.6 Relationship
The parties are independent contractors and no other relationship is intended. Nothing herein shall be deemed to constitute either party as an agent, representative or employee of the other party, or both parties as joint venturers or partners for any purpose. Neither party shall act in a manner that expresses or implies a relationship other than that of independent contractor. Each party shall act solely as an independent contractor and shall not be responsible for the acts or omissions of the other party. Neither party will have the authority or right to represent nor obligate the other party in any way except as expressly authorized by this Agreement.
11.7 Governing Law
This Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Ontario. The Parties hereto agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario.
11.8 Waiver
The waiver by either party of a breach or default of any provision of this Agreement by the other party shall not be effective unless in writing and shall not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege by such party shall constitute a waiver.
11.9 Assignment
Company may not assign the Agreement, in whole or in part, by operation of law or otherwise without Inbox Matters Digital's prior written consent, and any such purported assignment shall be void.
11.10 Remedies
Company acknowledges that its breach of any confidentiality or proprietary rights provision of the Agreement may cause Inbox Matters Digital irreparable damage, which monetary damages would be inadequate to remedy. Consequently, Inbox Matters Digital may seek injunctive or other equitable relief to enforce this Agreement and prevent any and all acts in violation of those provisions. The exercise by either party of any remedy under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise.
11.11 Survival
Sections 6, 8, 9 and 11 shall survive the expiration or termination of this Agreement.
11.12 Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both of which together shall constitute one and the same instrument. To evidence its execution of an original counterpart of this Agreement, a party may send a copy of its original signature on the execution page hereof to the other party by facsimile transmission or email and such transmission shall constitute delivery of an executed copy of this Agreement to the receiving party as of the date of receipt thereof by the receiving party or such other date as may be specified by the sending party as part of such transmission.