Sharethrough Managed Services Terms and Conditions

These Managed Services Terms and Conditions (hereinafter the “T&Cs”) govern the Insertion Order (the "IO") and are an integral part of the T&Cs (together referred to as the “Agreement”) for which Sharethrough Inc. (“Sharethrough”) provides Advertising Services to the signatory of the Agreement (the “Client”). The Client and Sharethrough each a “Party” or collectively, the “Parties.” By signing the IO, the Client hereby agrees to the current T&Cs.

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No specific conditions may, without formal and written acceptance by Sharethrough, prevail over the current T&Cs. In case of inconsistency or discrepancy between the French and the English version, the English version will prevail.

Subject to this Agreement, the Client engages Sharethrough to perform managed services in support of Client’s digital advertising campaigns (the “Campaigns”) based on the Client’s approved media plan as described in the IO (the "Advertising Services").

All rights, including intellectual property rights, in the Advertising Services or the Platform will remain with Sharethrough. Sharethrough hereby grants the Client a non-exclusive, non-transferable license to access and use the Sharethrough platform (the “Platform”) for the duration of the term for the purpose of accessing reports and other related functionality. This Agreement does not grant any rights or interests in the Advertising Services other than those expressly mentioned in the Agreement.

The Client will not, other than as expressly permitted by applicable law or this Agreement: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the Platform; (ii) modify, adapt, or translate the Platform; (iii) reproduce, resell, distribute, or sublicense the Platform; or (iv) otherwise allow any third party to use or access the Platform without Sharethrough’s prior written approval.

The Client represents and warrants that it has all necessary rights to grant and hereby grants to Sharethrough, for the duration of the Agreement, a royalty-free, sublicensable, non-exclusive worldwide right and license to distribute, display or publish, copy, reproduce, modify, adapt, translate, create derivative material, advertise, transmit, and communicate the Advertising Material as defined under Section 5, the domain name, and the Client’s Campaigns by all available means in connection with the Advertising Services.

In the event the Client is an advertising agency (“Agency”) representing an advertiser, the Client acknowledges and agrees to assume the responsibilities outlined in this Agreement on behalf of the advertiser it represents. The Client, as the Agency, represents and warrants that it has the necessary authority and permissions to act on behalf of the advertiser, including providing content, approving campaigns, and making decisions related to the Advertising Services.

The Client acknowledges and agrees that it is solely responsible for the content of any digital advertising creative provided to Sharethrough such as, but not limited to, texts, graphics, images, logos, video rich media, and any other materials (the "Advertising Material"). The Client further acknowledges that Sharethrough does not assume any responsibility or liability for the accuracy, legality, or appropriateness of the Advertising Material.

The Client will submit the Advertising Material in accordance with this Agreement. The Client represents and warrants that all Advertising Material will comply with all applicable laws, regulations, industry standards and the then-current documentation in effect, including the Sharethrough’s Demand Policy available at: https://www.sharethrough.com/sharethrough-demand-policy (the “Demand Policy”), which forms integral part of this Agreement. The Client acknowledges and agrees that Sharethrough or the Site Owner (defined hereafter), in its sole discretion, may refuse to include or remove any Advertising Material from the Site Owner’s property. Sharethrough will not be liable for any damages incurred by the Client because of any such action. For the purposes of this Section and throughout this Agreement, “Site Owner” will mean any owner/operator of a digital (including mobile) property or medium on which Advertising Material is distributed.

The Client acknowledges and agrees to: (i) make available to Sharethrough all Advertising Material required to carry out its obligations under the terms of the Agreement; and (ii) install and maintain the Sharethrough Pixel (the "Pixel") to enable the display of Advertising Material through the Advertising Services on its website no later than three (3) business days before the date on which the Client’s Campaigns are expected to go online. If the Client fails to install the Pixel within three (3) business days, Sharethrough reserves the right to extend any previously agreed upon deadlines by a reasonable amount or to stop work and terminate the Agreement as set forth in Section 9.

The Client understands that, in order to promote its Advertising Services and access to the Platform, Sharethrough may share some data, such as statistics, performance estimates, and other information for reporting purposes. Sharethrough declares that this data is accurate to the best of its knowledge.

7.1 Agreement and Advertising Services. The Client acknowledges and agrees that Sharethrough may, from time to time, modify these T&Cs and the Advertising Services. The Client is bound by any such modifications from the moment the Client receives a notice to that effect. In any event, continued use of any Advertising Services after the updated version of these T&Cs goes into effect will constitute Client’s acceptance of such updated version.  

7.2 Media Spend. The Client also acknowledges that Sharethrough may, from time to time and at its sole discretion, modify the allocation of digital media spending between different services held by the Client to provide the Advertising Services.

Sharethrough will issue invoices to Client each month based on Sharethrough data for the Advertising Services as set forth on the IO and any other applicable fees as may be agreed upon between the Parties (herein the "Fees"). Fees will be due and payable within thirty (30) days of the invoice date, unless otherwise stated on the IO.

The Client is responsible for paying any taxes, and withholding taxes associated with the Advertisement Services. Late payments will be subject to interest charges of 1.25% per month, and the Client will pay all expenses and legal fees incurred by Sharethrough in collecting late payments.

The Client must inform Sharethrough of any billing errors within thirty (30) days of receiving the invoice, otherwise the invoice will automatically be considered correct and should be paid for in full. Discrepancies over 10% will be investigated upon request and resolved to the Parties' reasonable satisfaction. Notwithstanding the above, if Sharethrough reasonably determines that a discrepancy is due to the Client's actions or omissions, the Client must promptly pay Sharethrough any underpaid payments.

Sharethrough reserves the right to suspend performance of its obligations hereunder and disconnect the Advertising Services in the event the Client fails to make timely payment hereunder.

9.1 Term. The term of this Agreement will begin on the date the first IO is executed by the Client and remains in effect until terminated. The Client hereby expressly waives its option to unilaterally resiliate the Agreement based on the provisions of article 2125 of the Civil Code of Quebec.  In case of early termination by Client, the Client remains responsible for paying Sharethrough ten percent (10%) of the media budget owing for the remaining duration of the IO or the Agreement, except in case of termination for Sharethrough’s uncured material breach of this Agreement.

9.2 Termination and suspension. Notwithstanding anything to the contrary, either Party may terminate this Agreement or an IO if the other Party materially breaches the Agreement and fails to cure the breach within ten (10) business days after receiving notice of the breach. Sharethrough may terminate, without prejudice to other rights or remedies, this Agreement immediately if the Client becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If the Client is in breach of the Agreement and in addition to any other rights or remedies available to it under this Agreement, in law or in equity, Sharethrough reserves the right to: (i) terminate this Agreement or any IO; (ii) remove access to the Platform and stop the Advertising Services; or (iii) suspend the Client’s access to the Platform and Advertising Services. If all IOs under this Agreement have expired or been terminated, then either Party may terminate this Agreement for convenience by providing written notice to the other Party.

9.3 Effect of termination. Upon termination of this Agreement or an IO: (i) the balance of Fees and other amounts due from the Client will become immediately due and payable to Sharethrough, unless termination is due to Sharethrough’s uncured material breach of this Agreement; and (ii) the Client will cease to have access to Advertising Services or to the Platform. If the Client terminates this Agreement or an IO because of Sharethrough’s uncured material breach, Sharethrough will refund a pro-rata share of any pre-paid Fees under the applicable IO.

Termination of an IO does not terminate this Agreement; however, termination of this Agreement will result in the immediate termination of all IOs. The provisions of this Agreement that by their nature extend beyond termination will survive termination.

The Client acknowledges and agrees that: (i) it will comply with applicable laws, rules, regulations, and guidelines including but not limited to the collection, use, storage, processing and transfer of third-party data; (ii) it is authorized to sign the Agreement and that the Agreement does not conflict with any other contract or engagement to which the Client is bound; (iii) it is authorized to publish, or otherwise make available to the public, the Campaigns, the Advertising Material, the landing pages, and any other material that the Client provides to Sharethrough or authorizes Sharethrough to access or use in connection with the Advertising Services; (iv) it possesses all of the permits and licenses that may be made public, including any license to practice provided by a professional group or another regulatory organization having jurisdiction over the Client’s activities; (v) it possesses all rights allowing for the use of trademarks or commercial names contained in the Advertising Material and that this use will not violate the rights of a third party, particularly intellectual property and privacy rights; (vi) it will not modify the Pixel provided by Sharethrough in such a way as to adversely impact delivery of the Advertising Material or an end-user’s ability to view the Advertising Material; (vii) it will not use the Advertising Services or the Platform in a manner that contravenes any applicable law or regulation; and (viii) it will comply with Sharethrough's Demand Policy.

11.1 Indemnification by Sharethrough. Sharethrough hereby agrees to defend, indemnify and hold harmless the Client and its affiliates, agents, officers, directors and employees from any and all liabilities, losses, damages, and costs (including, without limitation, reasonable legal fees and expenses) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings arising out of or caused by: (i) Sharethrough’s breach of a representation, condition or warranty under this Agreement; (ii) claims that the Advertising Services (exclusive of any Advertising Material the Client provides to Sharethrough or any other content or technology of the Client’s or a third party) infringe the right of such third party; or (iii) the gross negligence, willful misconduct or fraudulent activities of Sharethrough.

11.2 Indemnification by Client. The Client hereby agrees to indemnify, defend and hold harmless Sharethrough, its affiliates, agents, officers, directors and employees from any and all liabilities, losses, damages and costs (including, without limitation, reasonable legal fees and expenses) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings arising out of or caused by: (i) the Client’s breach of a representation, condition or warranty under this Agreement; (ii) claims or damages that any Advertising Material infringes the right of such third party; (iii) the gross negligence, willful misconduct or fraudulent activities of the Client; or (iv) claims that the Client and/or its Advertising Material violate any applicable federal, state, local and provincial laws, advertising standards, rules, statutes, regulations, including, but not limited to privacy laws and regulations.

The Advertising Services and the Platform provided under this Agreement are provided "as is" and on an "as available" basis. Sharethrough hereby disclaims all representations, warranties and conditions, whether implied or statutory, including, but not limited to, the implied warranties or conditions of title, merchantability, fitness for a particular purpose, reliability, timeliness, quality, suitability, truth, availability, or completeness. Sharethrough does not represent or warrant that: (i) the use of the Advertising Services and/or the Platform will be timely, uninterrupted, error-free or completely secure; (ii) the Advertising Services or the Platform will meet the Client’s requirements or expectations; or (iii) the placement of Advertising Materials will be restricted to a specified territory. Sharethrough will not be liable for any transaction that occurs, or does not occur, based on erroneous information delivered or input by the Client, technical malfunction or content of the Advertising Materials.

To the fullest extent permitted by law, neither Party will be liable to the other Party for any indirect, incidental, consequential, special, punitive or exemplary damages arising from or related to this agreement, including, but not limited to, lost profits or revenue, lost business or cost of replacement services. Except with respect to willful misconduct or gross negligence, or a Party’s indemnification obligations, in no event will either Party’s aggregate liability for all claims hereunder exceed the payments made by the Client to Sharethrough in the twelve (12) month period preceding the event that gave rise to the claim.  

Neither Party may assign any of its rights nor delegate any performance under this Agreement without the prior written consent of the other Party which will not be unreasonably withheld, except to an affiliate or in connection with merger, acquisition, or a change in control. All the terms of this Agreement will be binding upon and inure to the benefit of the Parties, their successors, assigns, and legal representatives.

14.1 Sharethrough Data. The Client will Process any Personal Data  (as defined by applicable law) that it receives, possesses or otherwise obtains access to, in the context of the Agreement, only for the purposes of this Agreement and in accordance with applicable international, national, federal, state, provincial, local laws and regulations, currently in effect, or as they become effective relating in any way to the privacy, confidentiality or security of the processing of personal data, as well as Sharethrough's privacy policies available at https://www.sharethrough.com/privacy-center and instructions, as they may be issued from time to time. The Client will maintain, monitor and enforce reasonable organizational, administrative, technical and physical safeguards to protect the security, integrity, confidentiality and availability of Sharethrough data.

14.2 Limited License to Client Data. The Client acknowledges and accepts that Sharethrough will use the Client’s personal data in order to meet its obligations in terms of the Agreement and to provide, operate, manage, maintain and enhance the Advertising Services as stated in the Agreement. The processing of Client personal data will be in accordance with Sharethrough’s privacy policies found here:  https://privacy-center.sharethrough.com/en/

The Agreement is governed by the applicable laws of the province of Québec, Canada, as well as applicable federal Canadian laws in this regard. Any disagreements concerning the current Agreement will be exclusively submitted to courts in the province of Québec, Canada.