Updated: November 8, 2019
1 INTRODUCTION AND DEFINITIONS
- 1.1 We provide you with access to our services, products, platforms, and programs (each, a “Program”), subject to your compliance with these Master Terms and Conditions for Advertising (the “MTCs”). These MTCs, including any applicable Appendices, together with any insertion order that you enter into with us, are the “Advertising Agreement.”
1.2 In the Advertising Agreement,
- a. an “Ad” is a promotional message consisting of text, graphics, audio, video, or any combination of these, and that is displayed on the Distribution Network to promote your products or services;
- b. “Advertising Materials” means artwork, copy, or active URLs for Ads;
- c. “Affiliate” means, with respect to any person, any other person controlling, controlled by or under common control with, such person, and with respect to Loblaw, a franchisee of Loblaw operating under one or more of the names, brands, banners, trade-marks, or logos of Loblaw in operating grocery retail stores and with whom Loblaw has a formal franchise agreement;
- d. “Authorized Users” means your agents, representatives, contractors, and any person or entity acting or apparently acting on your behalf;
- e. “Deliverable” or “Deliverables” means the inventory delivered by Media Company (e.g., impressions, clicks, or other desired actions);
- f. “Distribution Network” means the network of advertising channels, including all forms of media, applications, and devices, through which your Ads are distributed, whether on or off the Loblaw Platforms;
- g. “Information” is all information you (or an Authorized User) provide, approve, or use in connection with the Advertising Agreement, including all creative, titles, descriptions, trade-marks, listings, abstracts, keywords, ad target options, domain names, Ad content, data, data feeds, embedded technology, and URLs;
- h. “Insertion Order” or “IO” means the standard form Loblaw insertion order executed by us and you;
- i. “we,” “us,” “our”, and “Loblaw” mean Loblaws Inc.;
- j. “Loblaw Code” is proprietary software code (e.g., pixels, tags) and related tools that we may offer to you as part of such Program;
- k. “Loblaw Company” means Loblaw or an Affiliate of Loblaw;
- l. “Loblaw Entities” are the Loblaw Companies and their respective officers, directors, representatives, consultants, contractors, agents, employees, third-party service providers, and third parties distributing your Ads via the Distribution Network;
- m. “Loblaw Platforms” means the website pages or other digital inventory that are owned, operated, authorized, or hosted by or for the Loblaw Companies, and for greater certainty includes digital properties on which Loblaw has a contractual right to serve ads;
- n. “Personal Information” means any information about an identifiable individual, including where there is a serous possibility that an individual could be identified through the use of the information, alone or in combination with other information;
- o. “Policies” means advertising criteria or specifications made conspicuously available, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with our public image, community standards regarding obscenity or indecency (taking into consideration the portion(s) of the Loblaw Platform on which the Ads are to appear), other editorial or advertising policies, and Advertising Materials due dates;
- p. “Third Party” means an entity or person that is not a party to the Advertising Agreement;
- q. “Third Party Ad Server” means a Third Party that will serve and/or track Ads; and
- r. “you,” “your,” and “Advertiser” mean the company named in the applicable IO or accepting these terms manually or electronically through a designated platform or system.
- 1.3 Terms used but not defined in this MTC have the meanings given to them in any IO or rider. Terms used in any IO or rider, but not defined there, have the meanings given to such terms in these MTCs.
2 CHARGES, FEES AND PAYMENT
- 2.1 For any advertising offering we provide or Program you use, you will pay us all charges and fees you incur, plus any applicable taxes, based on the parameters set out on the IO or in your online account, as applicable.
- 2.2 Unless otherwise indicated on the IO, our measurements are the definitive measurements under the Advertising Agreement and will be used to calculate your charges.
- 2.3 With the exception of dynamically priced placements, in the event that Loblaw’s ad server measurements are higher than those produced by your Third Party Ad Server by more than 10% and you report such discrepancy in writing to us within ten (10) days of receipt of such measurements, we agree to investigate such discrepancy to facilitate a reconciliation. If the discrepancy cannot be reconciled, Loblaw’s delivery statistics will be used with a maximum adjustment of 10%.
- 2.4 We will submit an invoice to you using the contact information on the IO. Any portion of a charge not disputed in good faith must be paid in full within 30 days of the invoice date. Late payments bear interest at a rate of 1% per month, or the highest rate permitted by law, if less. You must submit to us any disputes about invoices or charges to your account(s) in writing within thirty (30) days of the invoice date, otherwise you waive the dispute and the charge will be final.
- 2.5 If you fail to make any payment due under the Advertising Agreement, you will pay all reasonable expenses (including any legal fees and third-party collection costs) we incur to collect the payment(s).
- 2.6 Charges and fees do not include any applicable sales, value-added, withholding, excise, or any other taxes or government charges, which are payable by you and are in addition to any amounts due.
- 2.7 Payments of service fees, unused promotional credits, and initial deposit(s) are non refundable.
- 2.8 We will close any accounts with no activity for more than twenty-four (24) months, and assess an account closing fee of CDN $25 or the balance in the account, whichever is less. If a balance remains, we will attempt to refund it to you using your contact information on file with us.
- 2.9 It is understood that the charges set out in the IO include the value of “Ad Points”, which represent the number of PC Optimum points that we award to eligible PC Optimum Loyalty customers for the use of their data.
3.1 You will not, and you will not permit anyone, to:
- a. use any automated means to access, monitor, scrape, or manage your account(s) with us, or to access, monitor, scrape or copy any Program, the Loblaw Platforms or Loblaw Company systems, or any data therein, except the automated means we expressly make available or authorize in advance in writing (e.g., third-party tools we approve);
- b. interfere with the proper working of the Loblaw Platforms, Programs, or systems; or
- c. bypass any robot exclusion headers on the Loblaw Platforms.
- 3.2 You may provide access to our offerings or systems, including your password(s) related to your account(s), solely to Authorized Users. You will promptly notify us in writing if you become aware of a potential breach of security relating to your account(s) with us, such as the unauthorized disclosure or use of your account credentials or any of the acts identified in Section 3.1. Authorized Users must comply with the Advertising Agreement, and you are fully liable and take responsibility for their acts and omissions in connection with the Agreement, and any charges, costs, fees, or expenses they may accrue.
- 3.3 Any Personal Information pertaining to our customers is owned by a Loblaw Company, and will not be sold or disclosed to you under any circumstances.
- 3.4 You may use data made available to you in connection with a Loblaw Platform, including data that is obtained, collected, or derived as a result of any targeting parameters provided by us, solely for internal use to manage your advertising account(s) with us. You may not publish that data or use it for retargeting except through our Programs.
- 3.5 We reserve the right to modify or discontinue offering any offering in whole or part.
- 3.6 Your Information and Ads must comply with our policies and specifications, which we may change from time to time.
- 3.1 You will not, and you will not permit anyone, to:
4 USE OF INFORMATION
- 4.1 When you participate in any Program, you grant the Loblaw Entities a non-exclusive, royalty-free, perpetual, irreovecable, worldwide license, but not obligation, to do the following: (i) publish, display, use, copy, archive, adapt, store, reformat, recompile, and modify any part of the Information and Ads for public performance, broadcast and communication to the public by telecommunication, public display, and distribution, in whole or in part, on any platform; (ii) access, index, and cache the website(s) to which your Ads link by any means; (iii) create and display in connection with your Ad copies of any text, images, graphics, audio, and video on the websites to which your Ads link; (iv) distribute your Ads through the Distribution Network; and (v) sub-licence these rights to any third-party.
- 4.2 None of the Loblaw Entities will have any liability for your Ads or Information. A Loblaw Entity may refuse, reject, cancel, or remove any Ad, Information, or space reservation at its discretion at any time. Your Ads may be subject to inventory availability, and the final decision as to relevance is ours.
- 4.3 Except as may be set out on an IO, we do not guarantee that your Ads will be placed in, or available through, any part of the Distribution Network, nor do we guarantee that your Ads will appear in a particular position or rank.
- 4.4 You agree that: (i) the Loblaw Entities have complete editorial freedom in terms of the content, look and feel and technical aspects of the Loblaw Platforms, Programs, and the distribution of Ads to end users; and (ii) the organization, specifications, availability and/or appearance of any Loblaw Platforms, the Programs (or any part thereof), any Third Party products, or property provided by any Loblaw Entity may be modified at any time at the Loblaw Entities' sole discretion.
5 MUTUAL CONFIDENTIALITY
- 5.1 “Confidential Information” means all information (in written, electronic or oral form) disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), or its officers, directors, employees, consultants, contractors, subcontractors, agents, advisors and other representatives of such Party (“Representatives”) under the terms and for purposes of this Agreement (including information disclosed in the course of negotiation of this Agreement and the existence and terms of this Agreement) that is not generally known to the public and that is designated as confidential or otherwise should reasonably be understood as confidential given the nature and circumstances of its disclosure. Confidential Information includes without limitation Ad pricing, placement and targeting information, any of our preexisting data used by us pursuant to an IO, any data gathered pursuant to an IO that allows identification of any Loblaw Entity, and data entered by users on any Loblaw Company Site. Confidential Information shall not include (i) information that is or becomes publicly available through no act or omission of the Receiving Party; (ii) information rightfully disclosed to the Receiving Party by a Third Party not bound by any confidentiality obligation with respect to such information; (iii) information developed by the Receiving Party independent of any of the Disclosing Party’s Confidential Information; or (iv) information that is rightfully in the possession of the Receiving Party and not subject to any duty of confidentiality as of the effective date of the Advertising Agreement.
5.2 The Receiving Party will not at any time:
- a. disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the Disclosing Party (except to disclose or make available to, in your case, your employees and Authorized Users, and in our case, our employees, agents, representatives, contractors, account managers, and Affiliates, in each case who have a legitimate need to know such Confidential Information); or
- b. use, reproduce, or copy any Confidential Information of the Disclosing Party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the Receiving Party by the Disclosing Party, or in connection with or as set out in the Advertising Agreement.
- 5.3 All Confidential Information will remain the Disclosing Party’s property, and all documents and electronic media containing or relating to any Confidential Information of the Disclosing Party will be delivered to the Disclosing Party promptly upon the Disclosing Party’s written request. Notwithstanding the foregoing, neither we nor you will be required to remove copies of the other party’s Confidential Information from any backup media or servers, provided the non-use restrictions set out herein shall apply to any Confidential Information retained by the Receiving Party.
- 5.4 If the Receiving Party or any of its Representatives becomes legally compelled by law, legal request for documents, subpoena, civil investigative demand or similar judicial or administrative process to disclose any of the Confidential Information, the Receiving Party shall, unless prohibited by applicable law, provide the Disclosing Party with prompt written notice of such requirement, and shall exercise commercially reasonable efforts to cooperate with the Disclosing Party (at the Disclosing Party’s expense) in any reasonable efforts by the Disclosing Party to obtain a protective order or similar remedy with respect to such Confidential Information. In the event that such protective order or other similar remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that has been legally compelled, and shall cooperate with the Disclosing Party (at the Disclosing Party’s expense) in any reasonable efforts by the Disclosing Party to obtain assurance that confidential treatment will be accorded such disclosed Confidential Information.
- 5.5 Notwithstanding anything to the contrary in the Advertising Agreement, all data and information gathered or received by us in connection with the applicable Program, including your Confidential Information, may be shared with and used by (i) the Loblaw Entities, and (ii) certain selected third parties in anonymous form.
6.1 We represent, warrant, and covenant to you that:
- a. we have sufficient authority to enter into the Advertising Agreement;
- b. the Loblaw Company Sites are, to the best of our knowledge, offered free of viruses, spyware, malware, or other malicious code; and
- c. we will not knowlingly engage in nor cause others to engage in: spamming or improper, malicious, or fraudulent clicking, impression, or marketing activities relating to your advertising campaigns.
6.2 You represent, warrant, and covenant to us that:
- a. you have the right and authority to enter into the Advertising Agreement;
b. your Information:
- (i) is, and will be updated to remain, current and accurate;
- (ii) is free of viruses, spyware, malware, or other malicious code;
- (iii) is either original to you or you have secured all necessary rights and licenses for its use as contemplated by the Advertising Agreement;
c. your Information, Ads (including products and services referenced therein), the website(s) to which the Ads link, all emails and other electronic communications, and other materials and technology in connection therewith, any tools or code you use or make available in connection with a Loblaw Program, and any act or omission by you relating to your Ads:
- (iv) do not violate any applicable laws, statutes, directives, ordinances, treaties, contracts, regulations, and Loblaw Company policies and guidelines (collectively, “Laws”);
- (v) do not infringe any copyright, patent, trademark, trade secret, or other intellectual property right of any person or entity;
- (vi) do not breach any duty toward, or rights of, any person or entity, including rights of publicity and privacy; and
- (vii) are not false, deceptive, or libelous;
- d. you will not engage in, nor cause others to engage in, spamming or improper, malicious, or fraudulent clicking, impression, or marketing activities relating to any Loblaw Platform;
- e. clicking on your Ad will not cause damage to an end user’s computer, download a software application, change an end user’s computer settings, or create a series of sequential, stand-alone advertisements (including by pop-up or pop-under);
- f. you will not reverse engineer, disassemble, reconstruct, decompile, copy, or create derivative works of any Loblaw Platform, or any aspect or portion thereof; and
- g. you will not provide access to the Loblaw Platforms, except to Authorized Users, who are bound in writing by use and confidentiality restrictions which are no less protective of us than those contained in this Advertising Agreement.
- 6.1 We represent, warrant, and covenant to you that:
- 7.1 Subject to Section 9, you will indemnify, defend, and hold harmless the Loblaw Entities from all losses, liabilities, expenses (including reasonable legal fees) and third-party claims, whether actual or alleged, that arise out of or in connection with: (a) your Information and Ads, including without limitation, any intellectual property infringement or violation of applicable laws; (b) your or Authorized Users’ use of any Program or Loblaw Company Website; (c) your website; (d) your negligence, misconduct or misrepresentation; (e) any recall or withdrawal of your product(s) or where applicable government authorities require corrective action regarding your product; or (f) your or Authorized Users’ breach of the Advertising Agreement; (collectively, “Your Claims”). You are solely responsible for defending any of Your Claims against a Loblaw Entity, subject to such Loblaw Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable legal fees, resulting from all of Your Claims against a Loblaw Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Loblaw Entity without its prior express written consent.
- 7.2 Subject to Section 9, we will indemnify, defend, and hold you harmless from all third-party claims, whether actual or alleged, arising from (a) infringement of any valid Canadian copyright or trademark, as a result of using the Loblaw Platforms in accordance with the Advertising Agreement, excluding data generated by analytics, the content of searches, Ads, results we serve, and/or content contained therein, any content submitted or approved by you or a Third Party, including other of our advertisers or end users, and/or any technology of yours and/or a Third Party; and (b) our breach of the Advertising Agreement; (collectively, “Loblaw Claims”). We are solely responsible for defending any Loblaw Claims, subject to your right to participate with counsel of your own choosing, at your own expense, and for payment of all judgments, settlements, damages, losses, costs, and expenses, including reasonable legal fees, resulting from the foregoing to you, provided that we will not agree to any settlement that imposes any obligation or liability on you without your prior written consent.
- 7.3 Notwithstanding any other provision in the Advertising Agreement, we will have no liability or indemnification obligation under the Advertising Agreement with respect to any Loblaw Claim to the extent it is based on or arises out of: (i) the modification of any Program, Loblaw Company Website and/or technology by you, an Authorized User, or a Third Party; (ii) the combination or use of any Program and/or technology with software, services, products, or technology of yours or a Third Party; or (iii) misuse of the Programs and/or Loblaw Company technology.
- 7.4 The indemnified party(ies) (i) will give the indemnifying party prompt notice of the relevant claim, provided that a failure or delay in providing such notice will not relieve the indemnifying party’s obligations except to the extent prejudiced by such failure or delay; and (ii) cooperate reasonably with the indemnifying party, at the indemnifying party’s expense, in the defense of such claim.
8 WARRANTY DISCLAIMER
- 8.1 THE PROGRAMS, CODE, DISTRIBUTION NETWORK, SYSTEMS, LOBLAW COMPANY WEBSITES, AND ANY OTHER MATERIALS AND SERVICES PROVIDED BY OR ON BEHALF OF LOBLAW UNDER THE AGREEMENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, WE AND YOU DISCLAIM ON BEHALF OF EACH OF OURSELVES (AND, IN OUR CASE, ALL LOBLAW ENTITIES) ANY AND ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, OR GUARANTEES, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY, SERVICE QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE DISTRIBUTION NETWORK, LOBLAW COMPANY SYSTEMS, PLATFORMS, EXCHANGES, WEBSITES, CODE, AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, AND YOUR USE THEREOF IS AT YOUR OWN RISK.
9 LIMITATION OF LIABILITY
- 9.1 EXCEPT FOR LIABILITY ARISING OUT OF BREACH OF SECTION 5, AND ANY INDEMNIFICATION OBLIGATIONS UNDER SECTION 7, UNDER NO CIRCUMSTANCES WHATSOEVER SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INDIRECT, OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER.
- 9.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY LIABILITY OF YOU OR THE LOBLAW ENTITIES IN CONNECTION WITH THE ADVERTISING AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY, WILL BE STRICTLY LIMITED TO THE GREATER OF (I) THE AMOUNT ALREADY PAID OR OWED BY YOU TO US PURSUANT TO THE ADVERTISING AGREEMENT IN THE THREE-MONTH PERIOD PRIOR TO THE DATE OF THE ACTIVITY FIRST GIVING RISE TO THE CLAIM AND (II) CDN$250,000.
- 10.1 Different offerings have different cancellation periods. If we manage your account, you may cancel Preemptible Ads including run-of-network, Native Ads, and video, on two (2) business days’ notice; you may cancel guaranteed or premium display Ads on fourteen (14) calendar days’ notice; you may cancel homepage or log-in takeovers on thirty (30) calendar days’ notice. Custom Programs, including but not limited to contest and sponsorship, are noncancelable.
- 10.2 If you manage your own account via online access, you may be able to cancel Ad campaigns or individual line items more quickly. In each instance, any required notice must be given to us in writing. You are responsible for all clicks or impressions actually delivered until such time as the cancellation is effective.
11 CANCELLATION AND TERMINATION
11.1 Unless designated on an IO as non-cancelable, you may cancel the entire IO, or any portion thereof, as follows:
- a. With fourteen (14) days’ prior written notice to us, without penalty, for any guaranteed Deliverable. For clarity and by way of example, if you cancel the guaranteed portions of the IO eight (8) days prior to serving of the first impression, we will be responsible only for the first six (6) days of those Deliverables.
- b. With seven (7) days’ prior written notice to us, without penalty, for any non-guaranteed Deliverable.
- c. With thirty (30) days’ prior written notice to us, without penalty, for any flat fee based or fixed-placement Deliverable, including, but not limited to, roadblocks, time based or share-of-voice buys, and some types of cancelable sponsorships.
- d. You will remain liable to us for amounts due for any custom content or development (“Custom Material”) provided to you or completed by us (or our third-party vendor, as applicable) prior to the effective date of termination. For IOs that contemplate the provision or creation of Custom Material, you will specify the amounts due for such Custom Material as a separate line item. You will pay for such Custom Material within thirty (30) days from receiving an invoice therefore.
- 11.2 Either we or you may terminate an IO at any time if the other party is in material breach of its obligations under this Advertising Agreement, which breach is not cured within ten (10) days after receipt of written notice from the non-breaching party, except as otherwise stated in this Advertising Agreement with regard to specific breaches. Additionally, if you breach your obligations by violating the same Policy three times (and such Policy was provided to you by us) and receive timely notice of each such breach, even if you cure such breaches, then we may terminate the IO or placements associated with such breach upon written notice. If you do not cure a violation of a Policy within the applicable ten (10) day cure period after written notice, where such Policy had been provided by us to you, then we may terminate the IO and/or placements associated with such breach upon written notice.
- 11.3 Short rates will apply to canceled buys to the degree stated on the IO.
- 11.4 Sections 2, 3.3, and 5 through 16 of these MTCs, the defined terms of the Advertising Agreement, and any other terms identified in any IO or rider will survive termination of the Advertising Agreement.
12 FORCE MAJEURE
- 12.1 Excluding payment obligations (as addressed under 12.2 below), neither we nor you (the “first party”) will be liable for delay or default in the performance of our respective obligations to the other party under the Advertising Agreement if such delay or default is caused by conditions beyond the first party’s reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or labour disputes (“Force Majeure event”). If we suffer such a delay or default, we will make reasonable efforts within five (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 you, we will allow you 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, you will have the benefit of the same discounts that would have been earned had there been no default or delay.
- 12.2 If your ability to transfer funds to third parties has been materially negatively impacted by an event beyond your reasonable control, including, but not limited to, failure of banking clearing systems or a state of emergency, then you will make every reasonable effort to make payments on a timely basis to us, but any delays caused by such condition will be excused for the duration of such condition. Subject to the foregoing, such excuse for delay will not in any way relieve you from any of your obligations as to the amount of money that would have been due and paid without such condition.
- 12.3 If a Force Majeure event has continued for five (5) business days, we and/or you have the right to cancel the remainder of an IO in progress without penalty.
- 13.1 We may give general business notices to you by by email to the address you provided. You will ensure that your contact information is current and correct, and promptly notify us in writing of any changes. We will send all legal notices to you regarding indemnification, Confidential Information, and/or breach of the Advertising Agreement (“Legal Notices”) via email to your address on file, or by recognized overnight courier, certified mail, return receipt requested, to the physical address set out on the applicable IO. You will send all Legal Notices to us to: email@example.com.
14 CHOICE OF LAW; VENUE
- 14.1 The terms of the Advertising Agreement and any dispute relating thereto or between you and us will be governed by the laws of the province of Ontario and the laws of Canada applicable therein, without regard to conflict/choice of law principles. You and we agree to submit to the exclusive jurisdiction of the courts of the province of Ontario.
- 15.1 The Advertising Agreement constitutes the entire agreement and understanding between you and us regarding the subject matter contained herein and supersedes all proposals, representations, claims, and communications, written and oral, regarding the subject matter contained herein. No terms or conditions other than those set out in these MTCs or IO(s), will be binding on us unless expressly agreed to in writing by us.
- 15.2 If there is a conflict between the MTCs and any IO, the IO will take precedence provided that (i) it has been properly executed by you and us by duly authorized representatives; and (ii) any variation of the MTCs by such IO shall only apply to the campaign to which that IO relates.
- 15.3 Only a written instrument specifically waiving compliance that is executed by whichever of you or us is entitled to a waiver may waive any term or condition of the Advertising Agreement. No waiver of a breach of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision.
- 15.4 If any provision of the Advertising Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Advertising Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar economic effect.
- 15.5 You and we are independent contractors. Neither Party is the legal representative, agent, joint venturer, partner, employee or employer of the other Party for any purpose whatsoever, and neither Party has any right, power or authority to assume or create an obligation of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect. Notwithstanding the foregoing, you acknowledge and agree that the Loblaw Companies will be third-party beneficiaries to the Advertising Agreement and will be entitled to enforce and rely on any provision in the Advertising Agreement which confers a benefit or rights on them.
- 15.6 You may not assign, sublicense, or transfer the Advertising Agreement or any right or duty under the Advertising Agreement. Any assignment, transfer, or attempted assignment or transfer in violation of this Section 15 will be void and of no force or effect. We may assign, delegate, sublicense, or otherwise transfer from time to time the Advertising Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity, such as to our Affiliate(s).
- 15.7 Services and obligations to be performed by us under this Advertising Agreement may be performed by other Loblaw Companies and third-party service providers.
- 15.8 Our advertising offerings, Programs, systems, platforms, and exchanges are proprietary to us and are protected by the applicable federal and international intellectual property laws. We retain all rights, title, and interests in them, together with all derivative works, modifications, enhancements, and upgrades. Any rights not expressly granted in the Advertising Agreement are reserved by you or us, as applicable.
- 15.9 We reserve the right to revise these MTCs, but any such revisions will only apply to new or revised IOs entered into after the date of any such revision. We may change the terms of the Advertising Agreement at any time without liability by sending an email to the address you provided to us. You must ensure your contact and account information is current and correct, and you must promptly notify us in writing of any changes. Your participation in the Distribution Network after such notice shall be deemed to be continued acceptance by you of the then-current Advertising Agreement. If you do not agree to any such change, you must immediately notify us in writing and stop using the Loblaw Platforms and any Programs.
- 16.1 If you are an advertising agency, reseller, or other entity representing advertisers (“Agency”), this Section applies. In such case, “you,” “your,” and “Advertiser,” as used throughout the Advertising Agreement, mean the Agency that executes an IO or logs into a Loblaw Platform, together with that Advertiser.
16.2 Agency represents, warrants, and covenants that:
- e. it is the authorized agent of the Advertiser and has the legal authority to enter into the Advertising Agreement on behalf of the Advertiser, make all decisions, and take all actions relating to the Advertiser’s accounts;
- f. when Agency executing an IO or otherwise enrolling an Advertiser in a Program, the Advertiser is also entering into the Advertising Agreement and you have bound the Advertiser to the Agreement; \
g. Agency will not, without our prior written consent:
- (i) make any representation, guarantee, condition, or warranty concerning any Program or Loblaw Entity, including that Agency is an affiliate or partner of a Loblaw Entity;
- (ii) make any commitments (e.g., placement guarantees) to an Advertiser or potential Advertiser regarding any Program; or
- (iii) negotiate any terms or conditions related to the Programs which may affect the rights, protections, and obligations of a Loblaw Entity, or that are inconsistent with the Advertising Agreement; or
- h. Agency will perform its duties pursuant to the Advertising Agreement in a professional manner consistent with the requirements established by us.
- 16.3 We may request, and Agency will immediately deliver to us, the agreement that designates Agency as the Advertiser’s agent and authorizes Agency to act on the Advertiser’s behalf in connection with the Advertising Agreement.
16.4 We will hold Agency liable for payments due under Section 2, above, solely to the extent Agency has received payment from the Advertiser. For sums not received by Agency, we will hold the Advertiser solely liable (“Sequential Liability”), provided, however:
- a. if we do not offer credit to the applicable Advertiser, we will notify you of rejection prior to the start of the applicable campaign, and in such case, if you elect to proceed with the campaign, and unless otherwise agreed upon in writing between or among Agency or Advertiser, on the one hand, and us, on the other hand, Agency and Advertiser will be jointly and severally liable for all payment obligations pursuant to Section 2, and you hereby waive any law that may require us to proceed against one or more of you prior to proceeding against any others who may also be liable; and
- b. if Agency (i) breaches Section 16.2e, above, or (ii) fails to comply with our request to confirm whether an Advertiser has paid to it in advance funds sufficient to make payments pursuant to Section 2, Agency shall immediately pay all amounts due regardless of whether it has received payment from such Advertiser.
- 16.5 You acknowledge that we may contact any Advertiser represented by Agency directly, including where our invoice for such Advertiser’s account remains unpaid for sixty (60) days.
- If you purchase display Ads (including video and native Ads), the following terms also apply.
1 POLICIES AND SPECIFICATIONS
- 1.1 Your Ads must comply with the then-current Policies which we may change from time to time.
- 2.1 “Preemptible Ads” are Ads that are displayed on a space-available basis and are not guaranteed to appear. You pay only for Preemptible Ads that are delivered, and we have no duty or obligation, express or implied, to publish, host, stream or otherwise deliver any Ads. Preemptible Ads include native, run-of-network Ads, and dynamically priced or optimized Ads.
- 2.2 Loblaw will bill you for Ads with a pricing type of “dCPM” (dynamic CPM) or “oCPM” (optimized CPM) based on the actual number of impressions delivered. When you use a Loblaw pre-approved third-party ad server that cannot account for dynamic pricing, we will report total cost to you so you can determine your effective CPM.
- 2.3 “Premium Ads” are Ads you reserve to run on specific sites or platforms at specific times.
- 3.1 We will use commercially reasonable efforts to deliver impressions in the amounts and locations as specified in an IO.
- 3.2 At your direction, we may optimize your campaign by modifying the line items of an IO. We must approve in advance in writing the serving of Ads by anyone other than us.
- 3.3 For Ads in an IO that specify frequency caps, we will use commercially reasonable efforts to comply with such frequency caps, provided that you agree that we are not liable if your Ads are viewed in excess of the frequency cap.
- 3.4 For dynamically priced campaigns, we may adjust the location of, and price for, your Ads in an effort to meet your target goals (e.g. cost per click “CPC” or cost per action “CPA”).
- 3.5 For Premium Ads, if your Information, including any updates, is not given to us three (3) days prior to its anticipated distribution or does not conform to our policies and specifications, we are not required to fulfill the Premium Ads portion of the IO, and you are responsible for the media purchased pursuant to the IO.
4 MAKE GOODS
- 4.1 For Premium Ads, if we fail to deliver, by the end of the period specified in the IO, the aggregate number and type of impressions as agreed in the IO, or the impressions fail to appear as provided in the IO, then you will only be billed for the impressions actually delivered under the terms of the IO, and your sole and exclusive remedy is limited to the following, at our sole discretion: a pro rata refund of any pre-paid fees, delivery of the remaining impressions at a later time in a comparable position as determined by us, and/or an extension of the term of the IO to allow for delivery of the remaining impressions, in each case at prevailing rates.
- 4.2 Make goods are not available for Preemptible Ads or “Added Value” IO items.
5 BONUS IMPRESSIONS
- 5.1 Where you use a Third Party Ad Server, we will not bonus more than 10% above the Deliverables specified on the IO without your prior written consent. Permanent or exclusive placements will run for the specified period of time regardless of over-delivery, unless the IO establishes an impression cap for Third Party Ad Server activity. You will not be charged by us for any additional Deliverables above any level guaranteed or capped on the IO. If a Third Party Ad Server is being used and you notify us that the guaranteed or capped levels stated on the IO have been reached, we will use commercially reasonable efforts to suspend delivery and, within forty-eight (48) hours of receiving such notice, we may either (i) serve any additional Ads ourselves or (ii) be held responsible for all applicable incremental Ad serving charges incurred by you but only (A) after such notice has been provided, and (B) to the extent such charges are associated with overdelivery by more than 10% above such guaranteed or capped levels.
- 5.2 Where you do not use a Third Party Ad Server, we may bonus as many ad units as we choose unless otherwise indicated on the IO. You will not be charged by us for any additional Deliverables above any level guaranteed on the IO.
6 USE OF DATA
- a. “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 any particular Advertiser.
- b. “IO Details” are details set out in an IO, including ad pricing and placement information, Ad description, and Ad targeting information;
- c. “Performance Data” is data regarding a campaign gathered during delivery of an Ad under an IO (e.g., number of impressions, interactions, and header information), but excludes Site Data;
- d. “Repurposing” means retargeting a user or appending data to a non-public profile regarding a user, for purposes other than performance of an IO; and
- e. “Site Data” is any data that is (i) our pre-existing data used by us under an IO; (ii) gathered pursuant to an IO during delivery of an Ad that identifies or allows identification of us, our site, brand, content, context, or users; or (iii) entered by users on any Loblaw Company Website.
- 6.2 Unless otherwise authorized by us in writing, you will not: (i) use IO Details, Performance Data, or Site 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, or (ii) disclose our IO Details or Site Data, except as a Transferring Party.
- 6.3 Unless you otherwise authorize us in writing, we will not use or disclose, on a non-Aggregated basis, your IO Details, Performance Data, or a user’s recorded view or click of an Ad for Repurposing or any purpose, other than performing under an IO, or internal reporting or internal analysis.
- 6.4 Unless otherwise set out in the IO, you and we (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.
- 6.1 Definitions
7 AD TARGETING
- 7.1 Unless otherwise set out on an IO, when geographic targeting is employed, all Loblaw placements are targeted to Canada only.
8 FLAT FEE BUYS
- 8.1 Line items designated on the IO as flat-fee or fixed-price placements are sold on a cost-per-day basis, regardless of the number of impressions or clicks delivered. Notwithstanding anything to the contrary set out on an IO (i) any impression levels listed in connection with the flat-fee line are estimates only; and (ii) no make good will be made available for such impression levels.
9 COST PER COMPLETED VIEW (CPCV)
- 9.1 All Ads set out on a line designated with the CPCV billing metric on the IO will be billed at the rate specified on the IO for each video that runs completely.
10 PROGRAMMATIC BUYS
- 10.1 Where (i) the IO includes placements on a Loblaw programmatic buying platform (the “Platform”); (ii) the Platform placements are set out on the IO; and (iii) Loblaw manages the campaign within the Platform on your behalf; Loblaw will have the ability to launch and edit campaign(s) during the flight dates, increase or decrease maximum bids for advertising inventory, set flight dates and frequency limitations, pause/start advertising campaigns, configure optimization objectives and pacing, upload media, access reporting, create retargeting and conversion pixels, and choose placements and targeting.
- 10.2 Separate terms will be set out on the IO if the campaign is self-service, or if you are using a separate demand side platform or bidder.
11 NATIVE AD BUYS
- 11.1 Ads delivered within the natural form and function of the user experience on the platform (“Native Ads”) are Preemptible Ads and will be served by Loblaw, and Loblaw measurements will be used for billing purposes. At your direction, we may optimize your account by modifying campaigns, including changing bid price and budget type.
12 NATIVE CONTENT
12.1 The following terms will apply to any lines on the IO that refer to your sponsorship of original custom content created by Loblaw or its Affiliates (“Native Content”),
- a. All Native Content sponsorships and placements on the IO pertaining to the Native Content are non-cancellable after the editorial kick-off meeting that Loblaw schedules with you.
- b. Advertiser will be identified as the sponsor of each piece of Native Content on Loblaw’s sites whenever a piece of Native Content is displayed.
- c. Loblaw will have creative control over all Native Content. Advertiser shall have the right to approve final Native Content, but approval shall not be unreasonably withheld or delayed. Native Content is subject to additional fees for extra rounds of editorial revisions beyond those stated in the initial timeline provided to Advertiser. Total additional fees will be presented to Advertiser before any revisions are made.
- d. Any content, data, logos, trade-marks, service marks or other materials provided by Agency or Advertiser (collectively, the “Advertiser Marks”) that are incorporated into the Native Content or otherwise used on Loblaw’s sites in connection with the sponsorship are Advertiser’s Information.
- e. Loblaw (and its licensors, as applicable) shall own all right, title, and interest in and to the Native Content, with the exception of any Advertiser Marks. Loblaw hereby grants Advertiser a royalty-free, non-transferable license during the term of the IO to publicly display and promote the Native Content on Advertiser’s owned and operated websites and/or Advertiser-branded social media accounts, with attribution to Loblaw any time the Native Content is used and an active link back to the Native Content on Loblaw’s site.
- f. In connection with the Native Content, during the term of the applicable IO, Loblaw grants to Advertiser a limited, non-exclusive, non-transferable, royalty-free license to use trade-marks or service marks of Loblaw (“Loblaw Marks”) and Advertiser grants to Loblaw and Loblaw Affiliates a limited, non-exclusive, non-transferable, royalty-free license to use the Advertiser Marks (together with the Loblaw Marks, the “Marks”); provided that each party: (i) displays notices sufficiently indicating the trademark status and ownership of the other party’s Marks; and (ii) complies with all written guidelines provided to it by the other party related to use of the other party’s Marks. Each party acknowledges the ownership right of the other party in the Marks of the other party and agrees that all use of the other party’s Marks will inure to the benefit, and be on behalf, of the other party. Each party acknowledges that its use of the other party’s Marks will not create in it, nor will it represent that it has, any right, title, or interest in or to such Marks beyond the licenses expressly granted herein.
- 12.1 The following terms will apply to any lines on the IO that refer to your sponsorship of original custom content created by Loblaw or its Affiliates (“Native Content”),
13 EFFECTS OF TERMINATION
- 13.1 Sections 5, and 12.1e and f of these Display Advertising Program terms will survive termination or cancellation of the applicable IO.