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IAB CANADA STANDARD TERMS AND CONDITIONS AND LATE CREATIVE POLICY FOR INTERNET ADVERTISING FOR MEDIA BUYS ONE YEAR OR LESS – Bell Media’s March 18, 2013 version revised to include certain text proposed by IAB in its December version] These Standard Terms and Conditions and Late Creative Policy for Internet Advertising for Media Buys One Year or Less are intended to offer Publishers (Media Companies), Advertisers, and their Agencies a standard for conducting business in a manner acceptable to all parties. These Standard Terms and Conditions shall apply to all online advertising orders agreed to between Media Company and Advertisers and/or their Agencies contracting for the purchase of advertising.  These Standard Terms and Conditions shall apply notwithstanding and regardless of any other conditions, amendments or other documents containing terms and conditions which may be provided by the Advertiser or its Agency, unless agreed to in writing by a senior executive officer of Media Company.  This document is to accompany Agency or Media Company insertion orders and represents a common understanding for doing business. It is acknowledged, however, that this document may not fully cover all ad placements, including those that appear on Mobile, Tablet, sponsorships and other arrangements involving content association or customized content integration, and/or special production, but may be used as the basis for the media components of such contracts. DEFINITIONS “Ad(s)” means any advertisement(s) provided by Agency on behalf of an Advertiser. “Advertiser” means the advertiser for which Agency is the agent under an applicable IO. “Advertising Materials” means artwork, copy, or active URLs for Ads. “Affiliate” means, as to an entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity. “Agency” means the advertising agency listed on the applicable IO. “Agreement” means these Terms, each IO and Media Company’s Policies “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. “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 cost per thousand impression basis. “Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions). “IO” means a mutually agreed insertion order that incorporates these Terms, under which Media Company will deliver Ads on Sites for the benefit of Agency and/or Advertiser. “Media Company” means the publisher listed on the applicable IO. “Media Company Properties” are websites (which websites may be specified on an IO) that are owned, operated, or controlled by Media Company. “Network Properties” means websites specified on an IO that are not owned, operated, or controlled by Media Company, but on which Media Company has a contractual right to serve Ads. “Optimization Period” is an agreed upon period of time/inventory where the Agency and/or Advertiser works with the Media Company, sharing information, to attempt to get better campaign results. Optimization practices may include changing ad sizes, ad placements, creative mix, or any number of variables. The length of an optimization period can depend on the level of inventory being run, but is recommended at the first ~10-20% of booked inventory from launch. “Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Media Company’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, all of which may be changed by Media Company from time to time. “Representative” means, as to an entity and/or its Affiliate(s), any director, officer, employee, consultant, contractor, agent, and/or attorney. “Rich Media” means advertisements with which users can interact (as opposed to solely animation).  These advertisements can be used either singularly or in combination with various technologies including Video, sound, or Flash, and with programming languages such as Java, JavaScript, DHTML, and HTML5.  They can be shown in the form of banners, buttons, transitionals, and various over-the-page units such as floating ads, page takeovers, and tear-backs, etc. “Rising Stars” references several high profile Rich Media ad units that have achieved standardization. Examples of these ad units and their source codes can be found here: http://www.iab.net/risingstars “Short Rates” refers to the process whereby Media Company negotiates a rate with an Agency and/or Advertiser based on a volume and/or spend commitment by Advertiser.  If Advertiser fails to meet the agreed upon volume and/or spend commitment, Media Company has the right to retroactively apply a higher rate to the invoice in connection with such delivered inventory. “Site” or “Sites” means Media Company Properties and Network Properties. “Terms” means these Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0. “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. “Third Party Ad Server” means a Third Party that serves and/or track Ads. “Video Ad-Serving Template (VAST)” is a universal protocol for serving in-stream video ads, permitting ad servers to use a single ad response format across multiple compliant publishers/video players (http://www.iab.net/vsuite) “Video Player-Ad Interface Definition (VPAID)” is a common communication protocol between ad units and video players that enables rich ad experiences and detailed event reporting back to Advertisers (http://www.iab.net/vsuite) “Video Multiple Ad Playlist (VMAP)” is a protocol that allows content owners to describe where ad breaks should be placed in their content when they do not control the video player or the content distribution outlet (http://www.iab.net/vsuite)   I.  INSERTION ORDERS AND INVENTORY AVAILABILITY a. IO Details. From time to time, parties may negotiate one or more IOs) under which a Media Company will deliver Ads provided by Agency to Media Company’s Site(s) for the benefit of an Agency or Advertiser.  An IO may either be submitted by Agency to Media Company, signed by Media Company and returned to Agency, or be submitted by Media Company, signed by Agency and returned to Media Company. In either case, an IO will be binding only if accepted as provided in Section I(b) below. Each IO shall specify: (a) the type(s) and amount(s) of Deliverables); (b) the price(s) for such Deliverables; (c) the maximum amount of money to be spent pursuant to the IO (if applicable), (d) the start and end dates of the campaign, and (e) the identity & full disclosure of, contact information, and acknowledgement of all Third Party Ad Server that Agency may wish  to use, subject in all circumstances to paragraph, XIII(a) below. Other items that may be included are, but are not limited to: reporting requirements such as impressions or other performance criteria; any special Ad delivery scheduling and/or Ad placement requirements; the use of any data verification analysis (including viewability metrics); and specifications concerning ownership of data collected. b. Availability; Acceptance. Media Company will make commercially reasonable efforts to notify Agency within 2 business days of receipt of an IO signed by Agency if the specified inventory is not available. Acceptance of the IO and these Terms will be made upon the earlier of (a) written (which, unless otherwise specified, for purposes of these Terms shall include paper, fax, or e-mail communication) approval of the IO by Media Company and Agency; or (b) the display of the first Ad impression by Media Company, unless otherwise agreed upon in the IO. Notwithstanding the foregoing, modifications to the originally submitted IO will not be binding unless signed by both parties. c. Revisions. Revisions to accepted IOs must be made in writing and acknowledged by the other party in writing.   II. AD PLACEMENT AND POSITIONING a. Compliance with IO. Media Company will comply with the IO, including all Ad placement restrictions, and, except as set forth in Section VI(c) below, will create a reasonably balanced delivery schedule. Media Company will provide, within the scope of the IO, an Ad to the Site specified on the IO when such Site is visited by an Internet user. Any exceptions to this will be approved by the Agency in writing, such approval not to be unreasonably withheld or delayed. b. Changes to Site. Unless otherwise specified in the IO, Media Company will use commercially reasonable efforts to provide Agency at least 10 business days, prior notification of any material changes to the Site that would materially change the target. Should such a modification occur with notice, Agency and Advertiser shall have the right to cancel the remainder of the IO without penalty, provided that any such cancellation must occur within the 10-business day notice period.  Should such a modification occur without notice, Agency and Advertiser shall have the right to cancel the remainder of the IO without penalty upon discovery of the modifications and shall be entitled to a return of applicable funds paid under the IO from the date such modifications were made up to the date of discovery, provided that any such cancellation must occur within 10 business days of Agency’s and/or Advertiser’s discovery of the modifications. c. Technical Specifications. Media Company will submit or otherwise make electronically accessible to Agency within two business days of acceptance of an IO final technical specifications, as agreed upon by the parties. Changes to the specifications of the already purchased Ads after that two business day period will allow Advertiser to suspend (without impacting the end date unless otherwise agreed by the parties) delivery of the affected Ad for a reasonable time in order to either (i) send revised Advertising Materials; (ii) request that Media Company resize the Ad at Media Company’s cost, and with final creative approval of Agency, within a reasonable time period to fulfill the guaranteed levels of the IO; (iii) accept a comparable replacement; or (iv) if the parties are unable to negotiate an alternate or comparable replacement in good faith within five (5) business days, immediately cancel the remainder of the IO for the affected Ad without penalty. d. Editorial Adjacencies. Ad delivery shall comply with any editorial adjacencies guidelines on the IO. As Advertiser’s and Agency’s sole remedy for a violation of the foregoing sentence: (i) Ads that run in violation of such editorial adjacencies guidelines, if Media Company is notified of such violation within 30 days (not business days) of the violation, shall be non-billable; and (ii) after Agency or Advertiser provides Media Company with written notice that specific Ads are in violation of such editorial adjacencies guidelines, Media Company will make commercially reasonable efforts to correct such violation as soon as possible. In the event that Agency or Advertiser, acting at all times reasonably and in good faith, believes that the violation of the editorial adjacencies guidelines or such correction materially and adversely impacts the IO, the parties will negotiate in good faith mutually agreed changes to such IO to address such impairment. In the event that the parties cannot reach agreement on such changes within five (5) business days from the implementation of such correction, Agency or Media Company may, upon the conclusion of such five (5) business day period, immediately cancel such IO, without penalty.   For any page on a Site that primarily consists of user-generated content, the preceding paragraph will not apply. Instead, Media Company will make commercially reasonable efforts to ensure that Ads are not placed adjacent to content that violates the Site’s terms of use.  Advertiser’s and Agency’s sole remedy for Media Company’s breach of such obligation will be to submit written complaints to Media Company, which will review such complaints and remove user-generated content that Media Company, in its sole discretion, determines is objectionable or in violation of such Site’s terms of use.  Advertisers that are sensitive to user-generated should specify their needs on the IO.   TBD -- NOTE: IAB Canada encourages all Ad Networks & Exchanges to become part of the Quality Assurance Guidelines (QAG) program, which address Contextual Taxonomy & Targeting, Inventory Vetting, Data Disclosure and many other elements: http://www.iab.net/QAG   III. PAYMENT AND PAYMENT LIABILITY a. Invoices The initial invoice will be sent upon completion of the first month’s delivery or within net 30 days of completion of the IO, whichever is earlier. Invoices are to be sent to: Agency’s or Advertiser’s billing address as set forth in the IO and must include information reasonably specified by Agency or Advertiser such as the IO number, Advertiser name (if IO has been signed by an Agency), brand name or campaign name, and any number or other identifiable reference stated as required for invoicing on the IO. All invoices pursuant to the IO must be received within 90 days of the end of the media campaign. Failure by Media Company to send such invoice(s) within 90 days may result in a delay in Media Company’s receipt of amounts owing under applicable invoices.  Upon written request from the Agency, Media Company shall provide invoices accompanied by proof of performance for the invoiced period, which may include a printed report or access to online or electronic reporting as addressed in this document, subject to the notice and cure provisions of Section IV. Media Company should invoice Agency for the services provided on a calendar month basis with the net cost (i.e., the cost after subtracting Agency commission) where Media Company has agreed to deduct Agency commissions, based on actual delivery or based on prorated distribution of delivery over the term of the IO, as specified in the applicable IO. b. Payment Date Agency agrees to make every reasonable effort to collect and clear payment from Advertiser on a timely basis, and  Agency will make payment no later than net thirty (30) days from receipt of invoice, or as otherwise stated in a payment schedule set forth in the IO. Upon expiry of the net thirty (30) day period, Media Company may notify Agency in writing that it has not received payment within such net thirty (30) day period and whether it intends to seek payment directly from Advertiser pursuant to Section IIIc, and may do so 5 business days after providing such notice.  In the event Media Company elects to seek payment directly from an Advertiser, Agency shall cooperate and assist Media Company with such collection efforts, including providing Media Company with all relevant Advertiser information (such as billing contact name and address) and executing all reasonable documentation to facilitate Media Company’s collection efforts, including formal assignment of any of Agency’s relevant contractual rights. c. Payment Liability If Advertiser places an order with Media Company by means of an Agency, the Agency represents, warrants and agrees that it is acting as an agent for the Advertiser for the purpose of this Agreement.  Agency and Advertiser (collectively, the “Advertiser Parties”) each acknowledge that Media Company has entered into this Agreement on the express condition that Agency is the duly appointed and authorized agent of Advertiser for all purposes related to this Agreement and on the credit of and promise to pay by both Advertiser and Agency and that, as such, the Advertiser Parties each acknowledge that they are jointly and severally liable and responsible for all obligations undertaken hereunder.       Agency will make available to Media Company upon request written confirmation of the relationship between Agency and Advertiser. This confirmation should include, for example, Advertiser’s acknowledgment that Agency is its duly authorized agent and is authorized to act on its behalf in connection with the IO and these Terms. In addition, upon the request of Media Company, Agency will confirm whether Advertiser has paid to Agency in advance funds sufficient to make payments pursuant to the IO. If Media Company determines, acting reasonably and at all times in good faith, that Agency’s or Advertiser’s credit is or becomes impaired, Media Company may require payment in advance. IV. REPORTING a. Confirmation of Campaign Initiation. Media Company will use commercially reasonable efforts to, within two (2) business days of the start date on the IO, provide confirmation to Agency, either electronically or in writing, stating whether the components of the IO have begun delivery.   b. Upon request from the Agency, Media Company shall make reporting available at least as often as weekly, either electronically or in writing, unless otherwise specified in the IO. Reports must be broken out by day and summarized by creative execution, content area (Ad placement), and other variables defined in the IO, for example, impressions, keywords, and/or clicks. Once Media Company has provided a required report, it agrees that Agency and Advertiser are entitled to reasonably rely on it, subject to receipt of Media Company’s invoice for such period.   If Media Company has agreed in writing in the IO to bill off of Agency’s Third Party Ad Server, the Agency must deliver a login to the Third Party Ad Server so that the Media Company may track the campaign’s delivery. If the login isn't working or is not delivered, the Media Company may choose to bill off of its ad server or to cancel the campaign with no penalty to Media Partner or its partners.   c. Challenges to the accuracy or completeness of reports must be submitted to Media Company in writing within ten (10) business days of submission of a report to Agency.  Pursuant to the foregoing sentence, upon Agency’s provision of notice to Media Company that Media Company delivered an incomplete or inaccurate report or no report at all, Media Company will cure such failure within five (5) business days of receipt of such notice.  In the event that Media Company fails to cure by delivering an accurate and complete report within the time specified, Agency may initiate discussions pursuant to Section VI below . Failure to cure may result in delayed payment for all activity for which data are incomplete or missing, until Media Company delivers reasonable evidence of performance, and such report must be delivered within 30 days of Media Company’s learning of such failure or, absent such knowledge, within 120 days of the end of the media campaign. V. CANCELLATION AND TERMINATION a. At any time prior to the serving of the first impression of the IO, Agency may cancel the IO with:   (i) 10 business days prior written notice, without penalty, for guaranteed and nonguaranteed inventory. Cancellations received within 10 business days prior to the serving of the first impression of the IO are subject to a 10 day sliding scale of required payment. (For clarity and by way of example, if Agency cancels the IO five (5) business days prior to the serving of the first impression, Advertiser will only be responsible for the first five (5) days of the IO.)   (ii) 30 days (not business days) prior written notice for flat-fee based or fixed placements (e.g. roadblocks). Advertiser is liable to Media Company for any amounts due for any custom content or development (e.g. a microsite) prior to termination. Said amounts should be separate line items in the IO. Advertiser will pay for such Custom Material within thirty (30) days from receiving an invoice.       b. Upon the serving of the first impression of the IO, Agency may cancel the IO for any reason, without penalty, by providing Media Company written notice of cancellation which will be effective after the later of:   (i) ten (10) business days after serving the first impression of the IO; or   (ii) five (5) business days after providing Media Company with such written notice.   Advertiser will be responsible for the total number of days that the Advertising Materials were executed.   c. Either party may terminate an IO at any time if the other party is in material breach of its obligations hereunder that is not cured within ten (10) business days after written notice thereof from the non-breaching party, except as otherwise stated in these Terms with regard to specific breaches.   d. Short Rates will apply to cancelled buys to the degree stated on the IO.   e. Notwithstanding any provision to the contrary in V. CANCELLATION AND TERMINATION or elsewhere in these Terms, the cancellation of an IO will not relieve Agency or Advertiser from its payment obligations to Media Partner in situations where an IO or any separate agreement entered into by Media Partner and Agency or Advertiser specifies that Media Partner shall be paid specified amounts for customized solutions associated with a campaign (including without limitation, acquisition of content or other products/services from one or more Third Parties, the creation of a microsite, and any special sponsorship opportunity created by Media Partner for the benefit of Agency or Advertiser.   f. Expiration or termination of these Terms shall not release the parties from any liability or obligation which, at the time of such expiration or termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in these Terms to survive termination. VI. MAKEGOODS a. Notification of Under-Delivery. Media Company shall monitor delivery of the Ads, and shall notify Agency either electronically or in writing as soon as possible (and no later than five (5) business days before IO end date unless the length of the campaign is less than five (5) business days) if Media Company believes that an under-delivery is likely. In the case of a probable or actual under-delivery, the parties may arrange for a mutually agreeable form of makegood consistent with these Terms.   b. Guaranteed Deliverables - Makegood Procedure. In the event that actual Deliverables for any campaign fall below guaranteed levels, as set forth in the IO, and/or if there is an omission of any Ad (placement or creative unit), Agency and Media Company will use good faith efforts to agree upon the conditions of a makegood flight either in the IO or at the time of the shortfall. If no makegood can be agreed upon, Agency may execute a credit equal to the value of the under-delivered portion of the campaign(s) for which it was charged. In the event that Agency or Advertiser has made a cash prepayment to Media Company, specifically for the campaign IO for which under-delivery applies, then if Agency and/or Advertiser has no overdue and outstanding amounts owing to Media Company under any other agreement for such Advertiser, Agency may elect to receive a refund for the under-delivery equal to the difference between the applicable pre-payment and the value of the delivered portion of the campaign. In no event shall Media Company provide a makegood or extend any Ad beyond the period set forth in the IO without prior written consent of Agency.   c. Unguaranteed, Flat-Fee, and/or Time-Blocked Deliverables. If delivery of a campaign has not been guaranteed by Media Company (by way of example only, if an IO contains CPA Deliverables, CPC Deliverables, or has been purchased on a flat-fee or for a certain time-block), the predictability, forecasting, and conversions for such Deliverables may vary and guaranteed delivery, even-delivery, and makegoods are not available.     VII. BONUS IMPRESSIONS a. Bonus Impressions With Third Party Ad Server. Where Agency utilizes a Third Party Ad Server, Media Company will not bonus more than 10% above the Deliverables specified in the IO without prior written consent from Agency. Permanent or exclusive placements shall run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad served activity. Agency will not be charged by Media Company for any additional Ads above any level capped in the IO, and/or the IO specifies a specific impression goal (e.g. a roadblock) at which point the ads will cease serving once the impression goal has been achieved. If a Third Party Ad Server is being used and Agency notifies Media Company that the capped levels stated in the IO have been reached, Media Company will use commercially reasonable efforts to suspend delivery and, within 48 hours, may either 1) serve any additional Ads itself or 2) be held responsible for all applicable incremental Ad serving charges incurred by Advertiser after such notice has been provided and associated with over-delivery by more than 10% above such capped levels. As stated in Section VI(c), unguaranteed inventory is not subject to bonus inventory. b. Bonus Impressions Without Third Party Ad Server. Where Agency does not utilize a Third Party Ad Server, Media Company may bonus as many ad units as Media Company chooses unless otherwise indicated on the IO. Agency will not be charged by Media Company for any additional advertising units above any level capped in the IO. VIII. FORCE MAJEURE a. Generally. Excluding payment obligations, neither party will be liable for delay or default in the performance of its obligations under this Agreement if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications (including internet, mobile and other technologies) network failures, electrical outages, acts of God, or labour disputes. In the event that Media Company suffers such a delay or default, Media Company shall make reasonable efforts within 5 business days to recommend a substitute transmission for the Ad or time period for the transmission. If no such substitute time period or makegood is reasonably acceptable to Agency, Media Company shall allow Agency a pro rata reduction in the space, time and/or program charges hereunder in the amount of money assigned to the space, time and/or program charges at time of purchase. In addition, Agency shall have the benefit of the same discounts that would have been earned had there been no default or delay.   b. Related to Payment. If Agency's ability to transfer funds to third parties has been materially negatively impacted by an event beyond the Agency's reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then Agency shall make every reasonable effort to make payments on a timely basis to Media Company, but any delays caused by such condition shall be excused for the duration of such condition. Subject to the foregoing, such excuse for delay shall not in any way relieve Agency from any of its obligations as to the amount of money that would have been due and paid without such condition.   c. Cancellation under Force Majeure. To the extent that a force majeure event has continued for 5 business days, Media Company or Agency has the right to cancel the remainder of the IO without penalty. IX. AD MATERIALS a. Late Creative. It is Agency’s obligation to submit Advertising Materials in accordance with Media Company’s then existing Policies (including IAB Canada Standard Banner, Rich Media, Rising Stars, Video, etc. Standards, all in accordance with Section II(c). Media Company's sole remedy for a breach of this provision is set forth in paragraphs (b and c) below, Section V(c), and Section X(b). If Advertising Materials are late, Advertiser is still responsible for the media purchased pursuant to IO. Unless the parties have expressly agreed to different timelines in the IO, Advertising Materials are considered late if (i) Media Company receives the final, Advertiser-approved and fully-functional Advertising Material in fewer than three (3) business days for Standard Banner advertising, in fewer than five (5) business days for Rich Media, Rising Stars, and Video advertising, or in fewer than ten (10) business days for custom advertising, before the start of the specified Advertising Campaign. This three (3), five (5) or ten (10) day period is required for the Media Company to 1) check for Specifications/Policy compliance and 2) Testing / Scheduling /Building out custom units. Provisions for late creative are outlined in Appendix A: Late Creative Policy. NOTE: For more info on the definitions of Standard and Rich Media Ad Units, please see http://www.iabcanada.com. For more information on the Rising Stars Ad Units, please see http://www.iab.net/risingstars. IAB Canada recommends Video creative to be VAST 3.0 complaint: http://www.iab.net/vsuite If not adhering to the Late Creative Policy (Appendix A), Agency and Advertiser are aware that full delivery of booked inventory may be hindered by creative that is received late.   b. Ad Material Compliance. Media Company reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials, software code associated with the Advertising Materials (e.g. pixels, tags, JavaScript), or the website to which the Ad is linked do not comply with its Policies, or that in Media Company’s sole reasonable judgment, do not comply with any applicable law, regulation or other judicial or administrative order. In addition, Media Company reserves the right within its discretion to reject or remove from its Site any Ads where the Advertising Materials or the site to which the Ad is linked are or may tend to bring disparagement, ridicule, or scorn upon Media Company or any of its Affiliates (as defined below), provided that if Media Company has reviewed and approved such Ads prior to their use on the Site, Media Company will not immediately remove such Ads before making commercially reasonable efforts to acquire mutually acceptable alternative Advertising Materials from Agency.   c. Notification for Non-Compliant Ad Materials. On receipt of Advertising Materials provided by Agency, Media Company will use commercially reasonable efforts to notify Agency of non-compliance with Specifications Policy within one (1) business day of its receipt of Advertising Materials, and will notify Agency of any changes required as a result of Testing within two (2) business days for Standard Banner creative and three (3) business days for Rich Media, Rising Stars, and Video. Advertising Materials that require adjustments are still subject to all Late Creative timelines and provisions.   d. Damaged Creative. If Advertising Materials provided by Agency are damaged, not to Media Company’s specifications, or otherwise unacceptable, Media Company will use commercially reasonable efforts to notify Agency within two (2) business days of its receipt of such Advertising Materials.   e. No Ad Materials Modification. Media Company will not edit or modify the submitted Ads in any way, including, but without limitation, resizing the Ad, without Agency approval. Media Company shall use all such Ads in strict compliance with these Terms and any written instructions provided by Agency.   f. Ad Tags. When applicable, Third Party Ad Server tags shall be implemented by Media Company so that they are functional in all aspects.   g. Trademark Usage. Media Company, on one hand, and Agency and Advertiser, on the other, will not use the other’s trade name, trademarks, logos or Ads in a public announcement (including, but not limited to, through any press release) regarding the existence or content of these Terms and Conditions or an IO without the other’s prior written approval.     X. INDEMNIFICATION a. By Media Company. Media Company agrees to defend, indemnify and hold harmless Agency and Advertiser, their Affiliates (as defined below) and their respective directors, officers, employees and agents from any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of Media Company’s breach of Section XII, Media Company’s display or delivery of any Ad in breach of these Terms and Conditions or the terms of an IO, or that materials provided by Media Company (and not by Agency or Advertiser) for an Ad violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, except to the extent that such claim, judgment or proceeding resulted from such materials fulfilling Agency's or Advertiser's unique specifications b. By Advertiser. The Advertiser Parties agree to defend, indemnify and hold harmless Media Company its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of a Third Party claim, judgment or proceeding relating to or arising out of: (i) a breach of Section XII by an Advertiser Party, (ii) the content or subject matter of any Ad or Advertising Materials to the extent used by Media Company in accordance with these Terms , including, but not limited to, allegations that such content or subject matter violate the right of a Third Party, are defamatory or obscene, or violate any law, regulations or other judicial or administrative action, or (iii) violation of Policies (to the extent the applicable terms of such Policies have been provided or otherwise made available to an Advertiser Party  at least two business days prior to the violation giving rise to the claim). c. By Agency. Agency represents and warrants that it is Advertiser’s duly authorized agent and has the authority to bind Advertiser to these Terms, all Policies and each IO. Agency agrees to defend, indemnify and hold harmless Media Company its Affiliates and their respective directors, officers, employees and agents from any and all Losses incurred as a result of Agency’s alleged breach of the foregoing sentence. d. Procedure. If any Third Party action, claim, judgement  or proceeding (each, a “Claim”) is brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such Claim of which it becomes aware and will: (i) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party's expense in connection with the defense or settlement of any such Claim; and (ii) be entitled to participate at its own expense in the defense of any such Claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such Third Party Claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party's rights or interests without the prior written consent of the Indemnified Party. e. Notwithstanding the foregoing, in the event that any Indemnifying Party is required to defend, indemnify or hold harmless an Indemnified Party from a Claim of a Related Party (as defined below) of such Indemnified Party pursuant to this Section X, Losses incurred in connection with such Claim will be limited to those that are reasonably foreseeable. A "Related Party" is a party in a contractual relationship with the Indemnified Party where such specific contractual relationship relates to the Loss being asserted by that Related Party. XI. LIMITATION OF LIABILITY Excluding the parties’ obligations under Section X or damages that result from a breach of Section XII, in no event will either party be liable for any consequential, indirect, incidental, punitive, special or exemplary damages whatsoever, including without limitation, damages for loss of profits or lost savings, business interruption, loss of information and the like, incurred by the other party arising out of this Agreement, even if such party has been advised of the possibility of such damages.  Notwithstanding anything to the contrary in the Agreement, a party’s aggregate liability for direct damages under the Agreement shall not exceed the total amounts paid or payable by an Advertiser under this Agreement, together with all out-of-pocket costs (including reasonable legal fees) incurred by a party in the course of collecting any amounts owing under this Agreement. XII. NON-DISCLOSURE, DATA OWNERSHIP, PRIVACY AND LAWS a. Definitions and Obligations. “Confidential Information” will include (i) all information marked as “Confidential,” “Proprietary,” or similar legend by the disclosing party (“Discloser”) when given to the receiving party (“Recipient”); and (ii) information and data provided by the Discloser, which under the circumstances surrounding the disclosure should be reasonably deemed confidential or proprietary. Without limiting the foregoing, Discloser and Recipient agree that each Discloser’s contribution to IO Details (as defined below) shall be considered such Discloser’s Confidential Information. Recipient will protect Confidential Information in the same manner that it protects its own information of a similar nature, but in no event with less than reasonable care. Recipient shall not disclose Confidential Information to anyone except its Affiliates and their respective officers, directors, employees and agents, or to a third party who has a need to know same and who is bound by confidentiality and non-use obligations at least as protective of Confidential Information as are those in this section. Recipient will not use Discloser’s Confidential Information other than in order to perform its obligations under any Agreement or as may be otherwise specifically provided for on the IO.   b. Exceptions. Notwithstanding anything contained herein to the contrary, and except for Personal Information (as defined below), the term “Confidential Information” will not include information which: (i) was previously known to Recipient; (ii) was or becomes generally available to the public through no fault of Recipient; (iii) was rightfully in Recipient’s possession free of any obligation of confidentiality at, or prior to, the time it was communicated to Recipient by Discloser; (iv) was developed by employees or agents of Recipient independently of, and without reference to, Confidential Information; or (v) was communicated by Discloser to an unaffiliated third party free of any obligation of confidentiality. Notwithstanding the foregoing, the Recipient may disclose Confidential Information of the Discloser in response to a valid order by a court or other governmental body, as otherwise required by law or as necessary to establish the rights of either party under these Terms; provided, however, that both Discloser and Recipient will stipulate to any orders necessary to protect such information from public disclosure.   c. Additional Definitions. As used herein the following terms shall have the following definitions:   “User Volunteered Data” is personally identifiable information collected from individual users by Media Company during delivery of an Ad pursuant to the IO, but only where it is expressly disclosed to such individual users that such collection is solely on behalf of Advertiser.   “IO Details” are details set forth on the IO but only when expressly associated with the applicable Discloser, including, but not limited to, Ad pricing information, Ad description, Ad placement information, and Ad targeting information.   “Performance Data” is data regarding a campaign gathered during delivery of an Ad pursuant to the IO (e.g., number of impressions, interactions, and header information), but excluding Site Data or IO Details.   “Site Data” is any data that is (A) pre-existing Media Company data used by Media Company pursuant to the IO; (B) gathered pursuant to the IO during delivery of an Ad that identifies or allows identification of Media Company, Media Company’s Site, brand, content, context, or users as such; or (C) entered by users on any Media Company Site other than User Volunteered Data.   “Collected Data” consists of IO Details, Performance Data, and Site Data.   “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user for purposes other than performance of the IO.   “Aggregated” means a form in which data gathered under an IO is combined with data from numerous campaigns of numerous Advertisers and precludes identification, directly or indirectly, of an Advertiser.   “Personal Information” means information about an identifiable individual.   d. Use of Collected Data.   Unless otherwise authorized by Media Company in writing, Advertiser will not: (A) use Collected Data for Repurposing; provided, however, that Performance Data may be used for Repurposing so long as it is not joined with any IO Details or Site Data; (B) disclose IO Details of Media Company or Site Data to any Affiliate or Third Party except as set forth in Section XII(d)(iii).   Unless otherwise authorized by Agency or Advertiser, Media Company will not: (A) use or disclose IO Details of Advertiser, Performance Data, or a user’s recorded view or click of an Ad, each of the foregoing on a non-Aggregated basis, for Repurposing or any purpose other than performing under the IO, compensating data providers in a way that precludes identification of the Advertiser, or internal reporting or internal analysis; or (B) use or disclose any User Volunteered Data in any manner other than in performing under the IO.   Advertiser, Agency, and Media Company (each a “Transferring Party”) will require any Third Party or Affiliate used by the Transferring Party in performance of the IO on behalf of such Transferring Party to be bound by confidentiality and non-use obligations at least as restrictive as those on the Transferring Party, unless otherwise set forth in the IO.   e. User Volunteered Data. All User Volunteered Data is the property of Advertiser, is subject to the Advertiser’s posted privacy policy, and is considered Confidential Information of Advertiser. Any other use of such information will be set forth on the IO and signed by both parties.   f. Privacy Policies. Agency, Advertiser, and Media Company will post on their respective Web sites their privacy policies and adhere to their privacy policies, which will abide by applicable laws. Non-compliance by Media Company, Agency or Advertiser with applicable Canadian privacy laws is grounds for immediate cancellation of the IO by the other party. g. Compliance with Law. Agency, Advertiser, and Media Company will at all times comply with all federal, provincial and local laws, ordinances, regulations, and codes which are applicable to their performance of their respective obligations under the IO. h. Agency Use of Data. Agency will not use Collected Data.   XIII. THIRD PARTY AD SERVING AND TRACKING (Applicable if Third Party Server Is Used) a. Media Company will track delivery through its ad server and billing for campaigns will be based off of Media Company’s ad serving numbers unless the Media Company expressly agrees in writing to bill off Agency’s Third Party Ad Server.  Agency may also wish to track delivery through its proprietary or subcontracted Third Party Ad Server whose identity is set forth in the IO. Agency must disclose all Third Party Ad Servers being used by it for the campaign. Agency may not substitute the Third Party Ad Server specified in the IO without Media Company’s consent. Agency and Media Company agree to give reciprocal access to relevant and non-proprietary statistics from both ad servers, or if such is not available, provide daily reports for the first three (3) days of the IO and weekly placement-level activity reports to each other thereafter. In the event that the Media Company’s ad server measurements are higher than those produced by the Agency’s Third Party Ad Server by more than 10% over the invoice period, Agency will facilitate a reconciliation effort between Media Company and Third Party Ad Server. If the discrepancy cannot be resolved despite both parties having made good faith efforts to facilitate the reconciliation effort, Media Company’s reporting numbers will be used with a maximum downward adjustment of 10%. The 10% discrepancy is based on placement and/or ad tag. All tags should correspond back to the line items in the insertion order (IO). b. Where an Agency is utilizing a Third Party Ad Server and that Third Party Ad Server cannot serve the Ad, the Agency shall have a one-time right to temporarily suspend delivery under the IO for a period of up to 72-hours (the “Ad Suspension Period”). Upon written notification by Agency of a non-functioning Third Party Ad Server, the Media Company has 24 hours to suspend delivery and the Ad Suspension Period shall commence upon suspension of delivery by Media Company. Agency will not be held liable for payment for any Ad that runs within the Ad Suspension Period until the Media Company is notified that the Third Party Ad Server is able to serve Ads. In the event that the Ad Suspension Period passes and Agency has not provided written notification that Media Company can resume delivery under the IO, Advertiser will pay for the Ads that would have run or are run after the Ad Suspension Period but for the suspension and can elect Media Company to serve Ads until Third Party Ad Server is able to serve Ads. If Agency does not so elect for Media Company to serve the Ads until Third Party Ad Server is able to serve Ads, Media Company may utilize the inventory that would have been otherwise used for Media Company's own advertisements or advertisements provided by a third party Upon notification that the Third Party Ad Server is functioning, Media Company will have 72 hours to resume delivery. Any delay in the resumption of delivery beyond such 72 hour period, without reasonable explanation, will result in Media Company owing a makegood to Agency.   c. Ad Server Reporting Access. If Media Company has agreed in writing to bill off of Agency third party numbers, the Agency must deliver a login to the Third Party Ad Server within one (1) day after campaign launch so that the Media Company may track their delivery. Agency must also set-up automatic daily reports to of delivery to a specified email address at the Media Company to monitor delivery. If Media Company does not receive a working login prior to campaign start or by the second day of the campaign, and attempts to notify the Agency fail to produce a login, the Media Company can slow down, pause, or decide to not go live with the campaign without penalty until a login is provided by the Agency or the Agency’s third party tracking partner. The Agency has the responsibility to provide access to the billing numbers in a timely fashion if billing is to take place on those numbers. Daily reporting to the Media Company should be automated, with a report sent to an identified Media Company lead, alongside providing the Third Party Ad Server login for manual checking.     XIV. MISCELLANEOUS a. Necessary Rights. Media Company represents and warrants that Media Company has all necessary permits, licenses, and clearances to sell the inventory represented in the IO subject to these Terms, including any applicable Policies. Advertiser represents and warrants that Advertiser has all necessary licenses and clearances to use the content contained in their Ads and Advertising Materials.   b. Assigning Rights. Neither Agency nor Advertiser may resell, assign or transfer any of its rights or obligations hereunder, and any attempt to resell, assign or transfer such rights or obligations without Media Company’s prior written approval will be null and void. All terms and provisions of these Terms and Conditions and each IO will be binding upon and inure to the benefit of the parties hereto and their respective permitted transferees, successors and assigns.   c. Entire Agreement. These Terms and the related IO constitute the entire Agreement of the parties with respect to the subject matter and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to the subject matter of the IO. The IO may be executed in counterparts, each of which shall be an original and all of which together shall constitute one and the same document.   d. Conflicts; Governing Law; Amendment. In the event of any inconsistency between the terms of an IO and these Terms, the terms of the IO shall prevail. All IOs shall be governed by the laws of the province of Ontario and the federal laws of Canada applicable therein. Media Company and Agency (on behalf of itself and not Advertiser) agree that any claims, legal proceeding or litigation arising in connection with the IO (including these Terms) will be brought solely in the courts in the Province of Ontario, and the parties consent to the jurisdiction of such courts. No modification of these Terms or any IO shall be binding unless in writing and signed by both parties. If any provision herein is held to be unenforceable, the remaining provisions shall remain in full force and effect. All rights and remedies hereunder are cumulative.   e. Notice. Any notice required to be delivered hereunder shall be delivered three (3) business days after deposit in Canada Post, return receipt requested; one (1) business day if sent by overnight courier service, and immediately if sent electronically or by fax. All notices to Media Company and Agency shall be sent to the contact as noted in the IO with a copy to the Legal Department. All notices to Advertiser shall be sent to the address specified on the IO.   f. Survival. Sections III, VI, X, XI, XII, and XIV shall survive termination or expiration of this Agreement and Section IV shall survive for 30 days after the termination or expiration of this Agreement. In addition, each party shall return or destroy the other party’s Confidential Information and remove Advertising Materials and Ad tags. g. Headings. Section or paragraph headings used in these Terms are for reference purposes only, and should not be used in the interpretation hereof.     Appendix A: LATE CREATIVE POLICY – March 1, 2008   DEFINITION: Ad Material Due Dates The IAB Canada Late Creative Policy requires that final, Advertiser-approved, fully-functional Online Ad Materials (in accordance with individual Media Company specifications (which may be IAB Canada Standard Banner or Rich Media, Rising Stars, Video units or otherwise) be delivered as follows:   Final, Advertiser-approved, fully-functional ad creative for Standard Banner ad units (see www.iabcanada.com for definition/file size restrictions) is due 3 business days prior to the start of the ad campaign as set out in the original Insertion Order (IO).   Final, Advertiser-approved, fully-functional ad creative for Rich Media, Rising Stars, and Video ad units (see www.iabcanada.com for definition/file size restrictions), is due 5 business days prior to the start of the ad campaign as set out in the original Insertion Order (IO). Media Company will utilize this 3 or 5 day period to 1) check for Specifications/Policy compliance, and 2) Testing/Scheduling. Media Company will use commercially reasonable efforts to notify Agency of non-compliance with Specifications/Policy within 1 business day of its receipt of Advertising Materials, and will notify the Agency of any changes required as a result of Testing, within 2 business days for Standard Banner creative and 3 business days for Rich Media, Rising Stars, and Video. For clarity, the protocol for the 3 or 5 business day deadline period is as follows: Day 1: Media Company shall run a “Specifications”* check and notify Agency of any material issues, within 24 hours upon receipt of Advertising Materials. Days 2-3 or 2-5: Upon confirmation that basic specifications are correct, Media Company will begin “Full Implementation”* check of Advertising materials. If Advertising materials are found by Media Company to have implementation issues that originated with the Agency, the Advertising materials will then be considered “not final” and the 2 or 4 business day allowance to launch period will begin again upon re-submission of fully-functional Advertising Materials. It is understood that Media Company will make every effort (but without guarantee), to work together with Agency to rectify issues with Advertising Materials within the respective 3 or 5 business day deadline period so that Advertising Materials will start as per IO. * “Specifications” check includes but is not limited to: inclusion of close button; file dimension and weight check; animation (timing or looping) check. ** “Full Implementation” check includes but is not limited to: clickthrough and reporting check; Z index/Wmode check; Java Script conflict check; ad server conflict check. NOTE: If an Advertiser or Agency is using a 3rd Party Ad Server or Rich Media, Rising Stars, or Video vendor external to the agency/agency ad server to deliver and track their Online ad campaign, it is recommended that final, Advertiser-approved, fully-functional creative of all types be delivered to the external 3rd Party Ad Serving/vendor company at least 10 business days prior to the start of the campaign as set out in the original campaign Insertion Order (IO), to allow for any additional external ad server/vendor testing and tagging. RESPONSIBILITY: If final, Advertiser-approved, fully-functional Advertising Material is not received by the Online Media Company according to the due dates above, the creative will be considered LATE, and the following will apply: Although the Advertiser still “owns” the ad impressions, space and time period that the original Online ad was slated to run (i.e. Online Media Companies cannot re-sell this space while the Advertiser seeks to remedy the late creative), unless the Advertiser or their Agency has supplied a “STAND-IN GIF or JPG AD” (see below), to run in place of the late creative, Media Companies have the right to run a “STAND-IN PSA AD” in place of the late creative. The Advertiser and their Agency has effectively “lost” all ad impressions which run (regardless of whether they run as a “STAND-IN GIF or JPG AD” or a “STAND-IN PSA AD”), while the Advertiser’s intended creative remains outstanding. The Advertiser and their Agency will be billed for all impressions purchased pursuant to the original Insertion Order, regardless of whether these impressions featured the intended creative, a “STAND-IN GIF or JPG AD” or a “STAND-­IN PSA AD”. Media Companies do not “owe” Advertisers and their Agency any impressions which run featuring a “STAND-IN GIF or JPG AD” or a “STAND-IN PSA AD”. If Additional impressions are required to meet Advertiser/Agency goals, additional space and impressions must be booked and purchased in addition to the original IO (assuming the inventory is available). DETAILED OPTIONS FOR FILLING LATE CREATIVE SPACE/IMPRESSIONS: If final, Advertiser-approved, fully-functional Advertising Materials, are not received by the Online Media Company according to the due dates above, the Advertiser and their Agency are still responsible for the media purchased, pursuant to IO, or up to the point where campaign has been cancelled. (Terms + Conditions Cancellation Clause to be applied). In order to make sure that the booked ad space is filled while the Advertiser and their Agency attempts to remedy the late creative situation, the Online Media Company may elect to enforce one of the following provisions: 1. “STAND-IN GIF OR JPG AD” Replacement A GIF or JPG version of the Advertisers‟ intended creative (or other designated creative meeting the Online Media Company’s technical and content specifications), may be provided by the Advertiser and their Agency to the Online Media Company – either by the Advertising Material deadline date (recommended) --or after --in order to fill any late creative space. This GIF or JPG will be considered a “STAND-IN GIF or JPG AD”, and will run until the final, fully-functional intended creative can be delivered. The Online Media Company will use the “STAND-IN GIF or JPG AD” as the approved creative/Advertising Materials in all designated placements as outlined in the IO. Upon receipt of the final, Advertiser-approved and fully-functional creative/advertising materials, the Online Media Company will replace the “STAND-IN GIF or JPG AD” with the intended creative/Ad Materials within a requisite 3 or 5 business days after receipt. If the intended creative/Ad Materials are delivered prior to the campaign start, the Online Media Company will make every effort, but without guarantee, to replace the “STAND-IN GIF or JPG AD” with the intended creative/Ad Materials in time for the campaign start. 2. “STAND-IN PUBLIC SERVICE ANNOUNCEMENT (PSA) AD” Replacement An IAB Canada-approved PSA (meeting the Media Company’s technical and content requirements), may be substituted by the Online Media Company if no “STAND-IN GIF or JPG AD” creative is provided by the Advertiser and their Agency before the Ad Material deadline date. This PSA will be considered “STAND-IN PSA AD” creative, and will run until final creative/Ad Materials can be put live. The Online Media Company will use the “STAND-IN PSA AD” as the approved creative/Advertising Materials in all designated placements as outlined in the IO. Upon receipt of the „fully-functional creative/Advertising Materials‟, the Online Media Company will replace the “STAND-IN PSA AD” with the intended creative within the requisite 3 or 5 business days. If the intended creative is delivered prior to the campaign start, the Online Media Company will make every effort, but without guarantee, to replace the “STAND-IN PSA AD” with the Intended creative/Ad Materials in time for the campaign start. A pre-determined set of PSA ads will be developed and made available to Online Media Companies across Canada by IAB Canada, and will be served by EyeReturn (www.eyereturn.com), who has generously offered their services in this regard. REPORTING: The Online Media Company will include results for “STAND-IN GIF OR JPG AD” or “STAND-IN PSA AD” creative in their delivery reports, within reporting guidelines as outlined in IO. A “STAND-IN GIF OR JPG AD” or “STAND-IN PSA AD” will be identified as such within the report, along with the respective impressions delivered. BILLING: The Advertiser and their Agency will be billed for the original, full, contracted amount pursuant to the original IO, which may include any or all “STAND-IN GIF OR JPG AD” or “STAND-IN PSA AD” impressions, as a result of late creative.