DMS TERMS & CONDITIONS 2017

Definitions & Interpretation

1.1    Entire Agreement The parties acknowledge and agree that this Agreement consists of the following documents: (i) the Sales Agreement; (ii) the General Terms & Conditions available at http://www.postmediaadvertising.com/general-terms-conditions/; (iii) these DMS Terms & Conditions; and (iv) where digital advertising is ordered, Postmedia agrees to comply with the following provisions of the IAB Canada Standard Terms & Conditions: II (Insertion Orders and Inventory Availability), III (Ad Placement and Positioning), V (Reporting), VI (Cancellation), VII (Make Goods), VIII (Bonus Impressions) and Appendix A (Late Creative Policy) (items (i) to (iv) collectively the “Agreement”).

1.2    Definitions. Capitalized terms used but not defined herein shall have the meanings given to them in the Sales Agreement or General Terms & Conditions. Capitalized terms defined in the body of these DMS Terms & Conditions will have the meanings given to them therein and the following terms shall have the meanings given to them below:

“Analytics Data” means information, statistics analysis and other data about the performance of the Marketing Services and related Campaigns and Subscriptions, including data about how end users of Customer’s products and services (“End Users”) interact with and respond to the Marketing Services.
 “Campaign” means a marketing initiative for Customer’s products and services, which has a fixed Start Date and a fixed Duration and which does not automatically renew.
 “Campaign Period” has the meaning given to it in Section 3.1 below.
“Custom Work Product” means Work Product that the parties agree will be developed for Customer specifically as a “work-for-hire” and the parties shall enter into a separate Statement of Work in relation to such Custom Work Product to set out the applicable deliverables,   development fees and Customer’s licensed rights to such Custom Work Product.
“Customer Data” has the meaning given to it in Section 6.2 below.
“Customer Site” means any website owned and operated by Customer.
“Hosted Site” means any website, mobile optimized website, or e-commerce website (other than an RE Site) developed and hosted by Postmedia, for Customer’s use, during the Term of this Agreement.
“Intellectual Property” Means any and all patents, copyright, trademarks, trade secrets or other intellectual property or proprietary rights contained in a deliverable or Work Product.
“Marketing Services” or “DMS” means the digital marketing services to be provided by Postmedia to Customer as more particularly set out in each Customer’s Sales Agreement and in Section 2.2 below.
Optimization Using best practices to monitor and make recommendations to Customer, based on Customer’s objectives, including, without limitation, monitoring a Customer’s expenditures; reviewing selected groups of keywords; conducting competitive analysis against ‘in-market’ competitors to determine recommended keyword lists; managing Customer’s Campaign(s) to monitor for overspend or underspend, using best practices to identify where budgets should be increased or decreased for keyword arrangements, and making and acting on recommendations to improve the performance of a Campaign (as measured by factors such as cost per click, click through rate).
“Platform” means the Third Party Supplier-managed, web-based marketing platform through which Postmedia makes certain Marketing Services available to Customer.
“RE Sites” means real estate websites that include a database of real estate listings and related information.
“Service Specifications” means any additional service descriptions and/or policies which are posted on Postmedia’s websites, including, without limitation, the General Terms and Conditions located at: http://www.postmediaadvertising.com/general-terms-conditions/ (or such other address as specified by Postmedia from time to time) and which are applicable to the Marketing Services specified in the Sales Agreement, including any documentation, hosting, support, security and Terms of Service.
“Start Date” means the date specified in the Sales Agreement upon which each Marketing Service shall commence.
“Subscription” means the purchase of a product or service with a fixed Start Date and a Term that automatically renews (either monthly or annually, as described in the Sales Agreement) for a pre-determined period of time, until such time as Customer terminates the applicable product or service in accordance with the terms of the Sales Agreement
“Subscription Period” has the meaning given to it in Section 3.1 below
“Terms of Service” means Postmedia’s terms of service for website use located at http://www.canada.com/aboutus/termsofservice.html as amended from time to time.
“Third Party Content” has the meaning given to it in Section 4.3 below.
“Third Party Technology” has the meaning given to it in Section 4.1 below.
“Third Party Supplier” means a non-Postmedia party   providing services either directly to Customer, or to Postmedia (with pass-through rights to Customer, if applicable) for inclusion in the Postmedia-provided Marketing Services.
“Work Product” means any products or deliverables created by Postmedia for Customer as part of the Marketing Services and licensed to Customer during the Term in accordance with the terms of this Agreement.

1.2     Interpretation. For purposes of this Agreement, all references to “days” will be measured in calendar days unless otherwise noted. A “business day” refers to any day except a Saturday, Sunday or nationally recognized Canadian holiday.

Marketing Services

2.1     Postmedia shall provide the Marketing Services outlined in each Sales Agreement to Customer in accordance with the terms of the Agreement during the Term.

2.2     The Marketing Services may include, but are not limited to, the following:

Advertising Programmatic Services Postmedia creates and manages Customer’s digital display ad buying method by matching audience data to optimize audience exposure and Customer’s budget and objectives.  The service will provide any Optimization, strategic recommendations and any necessary reporting to Customer.
Call Tracking If Customer purchases Search Engine Marketing Services (“SEM”), Customer may opt-in to receive Call Tracking Services. Call Tracking Services involve associating and deploying a unique temporary phone number with a Campaign (i.e. a telephone number included in End-User facing ads included in a Campaign) in order to measure the End User traffic generated by the Campaign by calculating the number of calls received as a result of the ads containing the Campaign phone number. If Customer elects to receive this Call Tracking Service, then, in addition to this Agreement, Customer is hereby agreeing to the Third Party Supplier’s terms of service, including without limitation, those located at this link:   https://www.callrail.com/legal/
Campaign Landing Page(s) This service includes the development and hosting of a temporary landing page for Customer’s Campaign(s) or Subscriptions.
Driving Dealer Solutions (“DDS”) This service is Postmedia’s website development service for automotive dealers whereby Postmedia uses a number of different website templates to create, design and host a customized Hosted Site for Customer, including the various add-on features for purchase by Customer, and provides access to a content management system to publish content on the Hosted Site.
Facebook Advertising This service includes the design and management of paid ads for Customer on the Facebook social media platform, as managed by Facebook Inc. This service may require an ad spend limit to be defined in the Sales Agreement.
Investment Boosting Upon the payment by Customer of additional Fees, this service enables Customer’s Social Media Account ads or posts to appear higher and/or more frequently in news feeds on Social Media Platforms in order to increase Customer’s exposure on such Social Media Platforms.
Listing Management This service is Postmedia’s local listing cleansing service whereby Postmedia will syndicate and distribute Customer’s updated business contact information including, without limitation, name, address, phone number, hours of operation, etc., across multiple data sources and directories. This service is also called “List Optimization.”
Live Chat Services This service enables Customer to place a Live Chat box on its Customer Site or Hosted Site, during the Term of the Agreement, to allow End Users to ask questions and receive support in real-time from chat agents. “Managed Live Chat Service” and “Self-Serve Live Chat Service” options are available to Customer. For Managed Live Chat Service, Postmedia can answer online chats and collect business leads on Customer’s behalf, whereas with Self-Serve Live Chat Service, Customer will be provided with access to a browser-enabled portal to download the Live Chat box onto its Customer Site, and/or a mobile app, in order to receive and respond to online chats directly from End Users.
Local Search Optimization (“LSO”) This service aims to ensure that accurate business information is syndicated across Customer and/or Postmedia-selected online properties and directories in order to increase the opportunity for Customer’s businesses to be found through search engines and online directories, with a specific focus on Customer’s local area of business. While Postmedia provides no guarantees in this regard, the goal of this service is to improve Customer’s organic ranking and traffic on a variety of search engines, based on certain areas of business focus of Customer. This service includes local Listing Management, and Review Monitoring and responding. LSO includes Optimization services.
Postmedia Hub This is a web platform created and hosted by Postmedia, for which Customer shall have password-protected access to data and reports (as generated by Postmedia or its Third Party Suppliers) relating to Customer’s Campaigns, Subscriptions and/or Marketing Services.
Real Estate Website Design and Hosting (“RE Site”) This service is Postmedia’s website creation service for real estate agents whereby Postmedia creates, designs, and hosts a Hosted Website (the “RE Site”) for Customer, during the Term, and provides Customer with access to a database of real estate listings and related information (“Listing Content”) to publish on the RE Site.
Responsive Website Design and Hosting This service is Postmedia’s website creation service, whereby Postmedia creates, designs, and hosts a permanent Hosted Site for Customer, during the Term, and provides access to a content management system to publish content on the Hosted Site (i.e. a back-end access portal for Customer to manage its website(s), add pages, upload images, etc.).
Review Monitoring Through this service, Postmedia aggregates reviews of Customer’s business across a number of platforms, search engines or directories, as set forth in the Sales Agreement, and provides Customer with access to a dashboard for Customer to view and respond to such reviews, individually, or across multiple formats/platforms.
Search Engine Marketing (“SEM”)/Google Ad Words This service (also known as Pay-per-Click advertising) is the process of gaining targeted website traffic by purchasing ads on search engines. Postmedia will consult, set up and run, a SEM marketing Campaign through Google AdWords and other search engines. This service is further described in Section 15 below. If Customer purchases SEM services, it may also opt to receive Call Tracking Services.
Search Engine Optimization (“SEO”) This service allows Postmedia to work with the Customer to improve its Hosted Site or Customer Site’s organic ranking and traffic for chosen areas of business focus across various search engines and directories.
Search Engine Optimization Audit This service allows Postmedia to provide Customer with a customized report with respect to the Customer or Hosted Site which could include, without limitation, search ranking against competition, Customer Site or Hosted Site performance, current Campaign performance and opportunities for enhancement.
Social Media Management Postmedia will create or modify Customer’s Social Media Accounts (i.e. Facebook, Twitter, Instagram, Pinterest, etc.),including publishing any and all types of content, providing an Investment Boost (as defined herein) to increase the exposure of a post or build the audience on selected Social Media Platforms, or responding to interactions such as post comments, all on behalf of Customer.
Social Media Management Self-Serve Portal This service enables Customer to manage its own Social Media Accounts via a Postmedia-provided back-end access portal which allows Customer to, for example, post across a number of Social Media Platforms, simultaneously, pre-schedule Posts across Social Media Platforms and receive notifications about likes, shares and comments across Social Media Platforms
Twitter Management Services This service includes the design and management of paid ads for Customer on the Twitter social media platform, as created and managed by Twitter Inc. This service may require an ad spend limit to be defined in the Sales Agreement.

2.3    New and Additional Services. As Postmedia adds additional products and services to its portfolio, such products and services will be referenced in the Sales Agreement and any additional terms and conditions related to such products and services will either be posted online or provided to Customer, and, in each case, such additional terms and conditions shall be deemed incorporated by reference into and made part of this Agreement and accepted by Customer.

Customer Obligations – Marketing Services and Campaign Logistics

3.1    Set-Up Period. The following is subject to any timelines set forth in the Sales Agreement:

(a) Campaign or Subscription Set-Up Period. Customer acknowledges and agrees that, with respect to the Marketing Services, Postmedia may require a set-up period to review and prepare the Campaign or Subscription, the length of which shall be determined by Postmedia, in its sole discretion (the “Set-Up Period”). Customer further acknowledges and agrees that the Set-Up Period will commence upon Postmedia’s acceptance of a Sales Agreement executed by Customer.

(b) Set-Up Notice Period. During the Set-Up Period, Postmedia may, depending on the Marketing Services selected in the Sales Agreement, require the Customer to provide details including, but not limited to, logins, passwords and other access credentials to Customer’s Social Media Accounts, website(s), reporting or analytics platforms, business details, business objectives and Customer Materials including, but not limited to, text, images, and videos, in order for Postmedia to provide the selected Marketing Services. During the Set-Up Period, Postmedia may also send certain deliverables, in draft form (each, a “Proof”) via email to Customer for review and approval. Customer agrees to provide written notice to Postmedia, either approving or rejecting the Proof (in whole or in part), within three (3) business days of receipt of the Proof, or such other notice period as may be specified in the deliverables e-mail (the “Set-Up Notice Period”). If applicable based on the Marketing Services selected by Customer in the Sales Agreement, Postmedia may send a gallery of templates (“Gallery”), via email, to Customer for its review and selection and Customer agrees to provide its selection within the Set-Up Notice Period. Customer acknowledges and agrees that TIME IS OF THE ESSENCE with respect to approving or rejecting the Proof, or selecting a template from the Gallery, within the Set-up Notice Period. If Customer fails to provide the required written response within the Set-up Notice Period, the Proof will be deemed “approved” by Customer and/or Postmedia will use its best judgment to select an appropriate template from the Gallery, on behalf of Customer.

(c) Acceptance. Any deliverables provided by Postmedia to Customer (including any Work Product and Custom Work Product) shall be deemed accepted on the earlier of: (i) written notice by Customer to Postmedia of such acceptance, (ii) failure to respond within the prescribed notice period as set forth by Postmedia in the applicable deliverable email; or (iii) Customer’s use of the deliverables.

(d) Go-Live Period. Once the Set-Up Period is done, and the Work Product is completed and ready to “go-live,” certain log-in information or domain name information may be requested from the Customer, as required to “go-live” with the Work Product for the applicable Marketing Service. If a written response is not received from Customer within three (3) business days from the request or such other notice period as may be specified by Postmedia in the applicable deliverable e-mail, the Work Product will be deemed fulfilled. If, at a future date, the log-in information or domain name information is received from the Customer the fulfilled Work Product will be made live.

(e) Delivery of Customer Materials and Creative.

(i) Delivery of Customer Materials. Customer will deliver to Postmedia all Customer Materials required for the Marketing Services within three (3) days from the execution of the Sales Agreement or such other notice period as may be specified in the Sales Agreement or by Postmedia, based on the applicable Marketing Service. If the Customer Materials do not conform to Postmedia’s specifications, Postmedia may, in its sole discretion, modify or reject such Customer Materials in order to meet Postmedia’s requirements or to address Campaign or Subscription performance issues. If Customer Materials are rejected, Postmedia will refund any applicable Fees paid in advance by Customer. Customer acknowledges and agrees that Postmedia shall not be liable for typographical errors, incorrect insertions or omissions contained within any of the Customer Materials provided by Customer under this Subsection 3.1(e); and

(ii) Postmedia Creative Services. If Customer requests that Postmedia create any Work Product or Custom Work Product for Customer, Customer shall be solely responsible for ensuring that any Customer Materials that it provides to Postmedia for inclusion within the Work Product is complete, accurate, non-infringing of any third party rights, including Intellectual Property Rights, and complies with Applicable laws, and Customer shall be liable for and indemnify Postmedia against any and all claims and damages for failure to do so.

(f) Domain Name Registration. In the event that Customer purchases any Marketing Services which include the development and hosting of a website (each a “Site” or Customer Site or Hosted Site), Customer shall be responsible, at its expense, for: (i) registering a domain name for the applicable Customer Site or Hosted Site, which registration shall remain in good standing throughout the Term; (ii) the applicable Domain Name System hosting; and (iii) providing Postmedia with whatever access credentials that it might require in order to provide the Marketing Services applicable to Customer’s Sales Agreement.

Third Party Suppliers’ Products and Services – Customer Obligations.

4.1    Third Party Suppliers and Third Party Technology. Customer acknowledges and agrees that Postmedia may use one or more Third Party Suppliers to provide a portion or all of the Platform, Postmedia Hub, technology, content or other products and services used in the provision of the Marketing Services to Customer, including any Work Product and/or Custom Work Product created in connection therewith. Such Third Party Suppliers may use software or other technology in conjunction with their services (collectively, “Third Party Technology”) and such Third Party Technology may be subject to additional terms and conditions. To the extent that any Work Product or Custom Work Product contains Third Party Technology, Customer agrees to comply with the applicable Third Party Supplier’s terms and conditions governing the use of such the Third Party Technology.

4.2    Third Party Platforms. To the extent that the Marketing Services involve the use of or participation in third party social media platforms (such as Facebook, Twitter, Instagram, Pinterest, LinkedIn or other similar platforms, each a “Social Media Platform”) Postmedia and Customer each agree to comply with the terms of use governing those Social Media Platforms. Failure to comply with the terms and conditions of any Social Media Platform may result in termination of the applicable Marketing Services.

4.3    Third Party Content. Any third party content made available by Postmedia (including, without limitation, all Listing Content) (the “Third Party Content”) is provided on an “as-is” basis and “as available” basis, without any warranty of any kind. Customer acknowledges that Postmedia is not responsible for, and under no obligation to control, monitor or correct Third Party Content; provided, however, that Postmedia reserves the right to remove, disable or take additional remedial action if any such Third Party Content contains any Prohibited Content or otherwise violates any other provisions of this Agreement or Applicable Laws.

Cessation or Modification of Marketing Services and Discontinuance of Service.

5.1    Cessation or Modification of Marketing Services. Postmedia reserves the right, and Customer acknowledges and agrees, that Postmedia may cease to provide any or all of the Marketing Services at any time, and Postmedia will not be responsible to Customer or any other person in any way for any loss or damage of any kind arising in connection with and/or as a result of such discontinuance (a “Discontinuation of Service”). In the event of a Discontinuation of Service, Postmedia shall provide Customer with notice of same and, following the payment of all Fees for services rendered up to the date of Discontinuation of Service, all other Fees applicable to the Marketing Services that are subject to a Discontinuation of Service shall cease to become due and payable.  In the event that Customer has pre-paid the Fees for Services undelivered as a result of a Discontinuation of Services, Customer shall receive a pro-rata return of such pre-paid Fees.

5.2    Effect of Termination. Upon termination or expiry of this Agreement for any reason, or in the event of a Discontinuation of Service, the following provisions shall apply:

(a) End of Services. Upon suspension, termination or expiry of this Agreement, Postmedia shall have no obligation to provide, and Customer shall have no right to access or use, the Marketing Services, including, without limitation, the Platform, Postmedia Hub, Work Products, Custom Work Products and any other products or services provided or made available to Customer in respect thereof. Postmedia’s right to suspend access to or terminate the Marketing Services or this Agreement shall not absolve Customer of any outstanding Fee payments, indemnification or confidentiality obligations in this Agreement, or diminish any other remedy available to Postmedia at law or in equity.

(b) Cached Content. Customer acknowledges and agrees that, due to the nature of the Internet, certain information regarding Customer that will be posted on the Internet as part of the Marketing Services, including, for instance, cached versions of pages from Customer or Hosted Sites may continue to be available from the Internet following termination of any of the Marketing Services and/or this Agreement. Customer shall be responsible for contacting search engines to have such pages removed and Postmedia is hereby absolved of any responsibility or liability in connection therewith.

(c) Termination Logistics. Upon termination of this Agreement for any reason, Customer will be responsible for returning or, at the direction of Postmedia in its sole discretion, destroying or deleting, any Postmedia Intellectual Property or other Postmedia materials related to this Agreement or the particular Marketing Service, as applicable. Without limiting the generality of the foregoing, the following steps must be taken by Customer in respect of the Marketing Services listed below:

(i) Live Chat Services (Managed or Self-Serve Portal): Customer must delete any software code installed on the Customer Site that was provided by Postmedia to facilitate this service.

(ii) Call Tracking: Customer must cease using any telephone numbers assigned to it as part of the Call Tracking Service.

Licenses.

(a) 6.1    License to Platform, Postmedia Hub and Work Product. Upon execution of the Sales Agreement, Customer will be granted a revocable, non-transferable, non-exclusive, royalty-free, limited license (“License”) to use the Platform and the Postmedia Hub solely for the purpose of accessing Analytics Data and other reports and statistics related to the performance of Customer’s Campaigns or Subscriptions (“Campaign Reporting” or “Subscription Reporting”). Customer acknowledges and agrees that it does not have, nor will it claim any right, title or interest in the Platform, the Platform software, the Postmedia Hub, any Work Product (except to the extent of any Customer Materials contained therein), data, applications, methods of doing business or any elements thereof, or any content provided on the Platform, which shall remain at all times with Postmedia (or its Third Party Suppliers). The license to access the Platform and the Postmedia Hub is granted on an ‘as is’ basis and access to the Platform, the Postmedia Hub, the Work Product and the Campaign Reporting or Subscription Reporting is solely at the risk of the Customer including, without limitation, the possibility that the Campaign Reporting or Subscription Reporting is inaccurate or incomplete or that the Campaign Reporting or Subscription Reporting and transmission thereof may be corrupted or contain viruses, bugs or other defects, for which Postmedia hereby disclaims all liability. Postmedia makes no representations or warranties, express or implied, including any warranty of merchantability, non-infringement, accuracy, completeness or fitness for a particular purpose with respect to the Platform, Postmedia Hub and any Work Product and Postmedia further disclaims any responsibility regarding the accuracy of any Campaign Reporting or Subscription Reporting or the suitability of the same for the Customer’s intended use. Customer’s access to the Platform and the Postmedia Hub shall be password protected and Customer agrees that it shall not share its password with third parties or otherwise provide access to the Platform and/or the Postmedia Hub to any third party. If the security of Customer’s username(s) or password(s) is compromised in any way, or if Customer or its agent(s) suspects the same, Customer shall immediately notify Postmedia. Postmedia shall not be responsible for any loss or damage suffered by Customer as a result of the compromise of any password or other access credentials. Customer may only access the Platform and the Postmedia Hub via a web browser or in a manner otherwise approved by Postmedia. Customer will not attempt in any way to reverse engineer, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Platform or the Postmedia Hub. Customer shall not remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on the Platform, Postmedia Hub or any other item included within the Marketing Services. To the extent that the Marketing Services involve the creation of any Work Product, upon execution of a Sales Agreement, Customer will be granted a License to the Work Product specified in the Sales Agreement, for the Term of this Agreement. Postmedia may utilize any and all methods, computer software, know-how or techniques developed by it while providing the Marketing Services and may incorporate the Work Product in future services of Postmedia, in its sole discretion. In connection therewith and to the extent applicable, Customer hereby grants to Postmedia a perpetual, irrevocable, non-exclusive, fully paid-up, royalty-free, transferable license to use any and all ideas, modifications, or suggestions provided, created, proposed or authored by Customer relating to the Marketing Services (“Suggestions”). Postmedia will have sole discretion as to whether and how to implement any such Suggestions to its Marketing Services. Postmedia may terminate the foregoing Licenses, at any time and for any reason, in its sole discretion and upon notice to Customer as set forth in Section 5 hereof.

6.2    License to Customer Data. As part of the Campaign or Subscription Set-Up Period and/or from time to time during the Term of any Campaign or Subscription, Customer may be requested to provide to Postmedia certain information including, without limitation, Customer contact information, credit card or ACH information and Campaign or Subscription information (the “Customer Data”), for input or incorporation into Third Party Supplier Technology, including web-based marketing platforms and Customer hereby authorizes Postmedia to do the same, on its behalf. Postmedia will only use such Customer Data in connection with the fulfillment of the Marketing Services and as otherwise permitted by the Sales Agreement and this Agreement.

Ownership/Proprietary Rights

7.1    Marketing Services, Platform, Work Product and Third Party Technology. As between Customer and Postmedia, Postmedia owns all right, title and interest in and to the Marketing Services, the Platform, the Postmedia Hub, the Work Product (excluding any Customer Materials incorporated therein) and the Third Party Technology, including any modifications to and derivative works therefrom, and any Intellectual Property Rights in and to the same. With specific reference to the Call Tracking Services, and without limiting the generality of the foregoing, Customer does not own any phone number assigned to it during the Term, or otherwise deployed during a Campaign or Subscription, and Customer shall not include the Campaign or Subscription phone number in any print or online directory or listing service; such phone number may only be used by Customer during the Term.

7.2    Customer Site, Customer Materials. As between the Postmedia and Customer, Customer shall own all right, title and interest in and to any Customer Site (including its related domain) and the Customer Materials. Upon execution of the Sales Agreement, and to the extent required by Postmedia to provide the Marketing Services, Customer grants to Postmedia an irrevocable, transferable, non-exclusive, royalty-free, limited license to use the Customer Materials in connection with the provision of Marketing Services.

7.3    Social Media Accounts. Customer shall own all rights with respect to Customer Social Media Accounts created pursuant to this Agreement, subject to: (i) payment by Customer of all applicable Fees specified in the Sales Agreement; and (ii) its compliance with any terms and conditions of ownership set out in the Sales Agreement and any other applicable terms of this Agreement.

7.4    Analytics Data – Postmedia shall own all Analytics Data generated by the Marketing Services. Customer may only access the Analytics Data via the Postmedia Hub, or as otherwise provided by Postmedia, during the Term of this Agreement, subject to compliance with the terms and conditions hereof.

Permissions.

8.1    Permission to Access Accounts. If Customer purchases Marketing Services that require Postmedia to access, create or manage third party social media accounts on Social Media Platforms, on behalf of Customer (each a “Social Media Account”), by signing the Sales Agreement, Customer consents to Postmedia creating new Social Media Accounts and/or accessing Customer’s existing Social Media Account(s) during the Term, for the sole purpose of providing the Marketing Services. Customer shall provide Postmedia with full access/administrative rights, including logins, passwords and other access information (including any updates thereto) as it may reasonably require (“Credentials”) to perform the Marketing Services. If Postmedia sets up a Social Media Account for Customer, subject to payment by Customer of all applicable Fees, upon the expiry or termination of this Agreement, Postmedia shall provide Customer with all Credentials required to operate the Social Media Account going forward.

Privacy Considerations.

9.1    Customer Privacy Policy. Customer shall, at all times, post a privacy policy on its Customer or Hosted Sites and comply with such privacy policy at all times. The privacy policy shall comply with all Applicable Laws (including all Privacy Laws and CASL) and shall not contain any terms that are inconsistent with, or would otherwise restrict Postmedia from, performing its obligations hereunder. In addition, to the extent that any Customer Site collects personally identifiable information, Customer’s privacy policy must notify its End Users that such information may be transmitted through or processed by Third Party Supplier sites, including those of Postmedia. If Customer purchases Postmedia’s Advertising Programmatic Services, Customer is obligated to ensure that its privacy policy permits the behavioral targeting contemplated by such service. Customer acknowledges and agrees that its failure to ensure that its privacy policy complies with the foregoing requirements may expose Postmedia to liability which shall be fully indemnified by Customer. If Customer’s privacy policy does not comply with the foregoing requirements, Postmedia shall be entitled to cease providing the Marketing Services until such time as Customer is compliant.

9.2    Customer Use of Analytics Data. To the extent that any Analytics Data is comprised of Personal Information, Customer agrees that it will not: (i) use the Marketing Services to collect Analytics Data except as expressly permitted by Privacy Laws; or (ii) use the Analytics Data in ways that are contrary to Privacy Laws and Customer’s own privacy policy.

Additional Service-Specific Terms and Conditions

10.1    Search Engine Marketing Services (“SEM Services”). If purchased through a Sales Agreement, Postmedia will provide Customer with the SEM Services subject to the terms and conditions set forth below and any additional terms and conditions of any applicable Third Party Supplier who provides one or more of the Marketing Services purchased by Customer hereunder.

A)      SEM Services include Optimization services.

B)     Google AdWords Services. If purchased by Customer, SEM Services may include services related to the purchase of Google AdWords, which services are subject to the following terms and conditions, and any other terms and conditions included in the Sales Agreement:

Postmedia is a “Google AdWords Premier SMB Partner”. In connection with Postmedia’s sale of Google AdWords Services, Postmedia may charge a management fee as part of the Fees. For additional information on Google’s third-party partner programs, please click here: http://www.google.com/adwords/thirdpartypartners/

For the purposes of this section, “Account” shall mean Customer’s existing Google AdWords account and/or a Google AdWords account set up by Postmedia for Customer under this Agreement.

Existing Accounts: Postmedia will set-up Customer’s Google AdWords Campaign during the period specified in the Sales Agreement, using the Google AdWords management portal. By signing the Sales Agreement, Customer consents to Postmedia accessing its Google AdWords Account (via the Google AdWords management portal) for the Duration specified in the Sales Agreement, for the purpose of providing the SEM Services. Customer shall provide Postmedia with passwords and such other access as it may require to perform the SEM Services, and Customer shall limit its own access to its Google AdWords Account to “read-only” so that it cannot make AdWords purchases from its own Google AdWords Account. In addition to the foregoing, Postmedia will be required to manage billing, on behalf of Customer, with respect to Customer’s Google AdWords Account.

New Accounts: If Customer does not have a Google AdWords Account, Postmedia will set up a Google AdWords Account from which it will purchase Google AdWords on behalf of Customer for the Duration specified in the Sales Agreement.

Ownership of Accounts: Customer shall own any Google AdWords Account which it has already established prior to the commencement of the Duration. In the case of any Google AdWords Account which is set-up by Postmedia during the Duration, upon expiry or termination of the Duration, as applicable, the Customer’s ownership with respect to the Account will be as follows:

(i) Leader, Advanced and Premium Account Package with Duration of 6 months or less:

If Set-Up Fee Paid by Customer: Postmedia will provide Customer with the Customer ID and login credentials for the Account, together with all Campaign data accumulated within the Account during the Duration.

If No Set-Up Fee Paid by Customer: Postmedia will provide Customer with the Customer ID and login credentials for the Account, however, all Campaign data accumulated within the Account during the Duration shall be deleted from the Account.

(ii) Leader, Advanced and Premium Account Package with Duration of 6 months or more:

Postmedia will provide Customer with the Customer ID and login credentials for the Account, together with all Campaign data accumulated within the Account during the Duration.

(iii) Starter Account Packages:

No ownership rights shall accrue to the benefit of Customer and Customer will not be provided with the Customer ID or login credentials for the Account or any Campaign data within the Account.

10.2    Facebook Advertising. If Customer purchases Facebook Advertising services, Postmedia will create and manage Facebook Advertising Campaigns (including, for example, posts, advertisements, contest, etc., which may include, Customer Materials, as supplied by Customer) for Customer’s business and Customer hereby agrees to be bound by any additional terms and conditions as required by Facebook from time to time. Postmedia makes no representations about the number of “Likes” produced by the Facebook Advertising Campaigns. Additionally, Postmedia cannot control who may “share” or otherwise forward Customer’s Facebook advertisements, and hereby disclaims any liability related thereto.  Facebook Advertising includes Optimization services.

10.3    Twitter Advertising. If Customer purchases Twitter Advertising services, Postmedia will create and manage Twitter Advertising Campaigns (including, for example, tweets, advertisements, etc., which may include, Customer Materials, as supplied by Customer) for Customer’s business and Customer hereby agrees to be bound by any additional terms and conditions as required by Twitter from time to time. Postmedia cannot control who may “retweet” or otherwise forward Customer’s Twitter advertisements and hereby disclaims any liability related thereto. Twitter Advertising includes Optimization services.

10.4    RE Sites (Real Estate Sites). If Customer purchases Marketing Services comprised of an RE Site, Postmedia shall provide such services subject to the following additional terms:

a)   Customer shall opt-in to the Canadian Real Estate Association’s (“CREA”) National Shared Pool Module and/or Member Feed Module;

b)   Customer is granted a license to use the Listing Content on its RE Site on an ‘as-is’ basis. Use of the Listing Content is solely at the risk of the Customer including, without limitation, the risk that the Listing Content is inaccurate or incomplete or that the Listing Content and transmission thereof may be corrupted or contain viruses, bugs or other defects. Postmedia makes no representations or warranties, express or implied, including any warranty of merchantability, non-infringement, accuracy, completeness or fitness for a particular purpose and Postmedia disclaims any responsibility regarding the accuracy of any Listing Content or the suitability of the same for the Customer’s use;

c)   Customer shall comply with the CREA rules attached to these Terms & Conditions at Schedule A (“CREA Rules”) at all times during the Term.

 

10.5    Managed Live Chat Services. If purchased through a Sales Agreement, Postmedia will provide Customer with the Live Chat Services subject to Customer’s compliance with the following additional terms and conditions:

a) Chat Sessions & Availability

i. Incoming chat requests to the Postmedia support center or chat agents will be queued based on the time of the incoming request from the End User of the applicable Customer Site or Hosted Site and Postmedia will use commercially reasonable efforts to respond all such chat requests.

ii. The Managed Live Chat Service may be available up to 24/7, based upon the package that the Customer has chosen in its Sales Agreement.

b) Knowledge Base

i. A knowledge base of potential or frequently asked questions and answers (the “Knowledge Base”) may be built by consultation with and collaboration from Customer, in order for Postmedia’s chat agents to provide pre-determined responses to incoming questions from End Users that may be asked during a chat session. This Knowledge Base will be modified as needed in order to keep the content updated and to provide more responses to new questions that are asked.

ii. The content in this Knowledge Base shall be the property of Postmedia and provided to Customer under License as such term is defined herein.

c) Scope of Service

i. Postmedia’s chat agents, or others working in the Managed Live Chat Service support center, will attempt to address any simple issue, question or concern from any End User but shall be limited in their scope of responses to the content of the Knowledge Base or other information reasonably expected to within the knowledge of Postmedia. End Users asking complex questions that will require in-depth resolution or instruction will be referred back to Customer for a direct response.

ii. The number of chats offered per month as part of the Managed Live Chat Services shall be as specifically outlined in the Sales Agreement.

iii. Managed Live Chat Services do NOT include the following, unless otherwise agreed to by the Customer in advance and clearly detailed in the Knowledge Base:

i. The ability to bind the End Users in any shape or form.

ii. The ability to address specific discounts, payments or refunds of any type.

iii. The ability to go beyond what is detailed in the Knowledge Base.

d) Installation of Software. Customer agrees to provide Postmedia with access to any Customer Site host in order for Postmedia to install the necessary software required for the Managed Live Chat Service on the applicable Customer Site domain. In the event that the Customer does not provide Postmedia with such access, Postmedia shall license to Customer, in accordance with the License provisions described herein, the necessary code and software required for Customer to install the same on its own.

 

e) Lead Generation. If possible, Postmedia will use commercially reasonable efforts,, but shall not be obligated (nor shall Postmedia guarantee delivery of), to attempt to gather information from the chat session about the End User’s name, email address and phone number, on behalf of Customer. To the extent permitted by Applicable Laws, this information may be sent to the Customer at the email address provided by Customer for this purpose, as a potential sales lead.

f) Chat Overage Fees

i. Managed Live Chat Services Overage options shall be available to Customer, upon request, via a Sales Agreement, subject at all times to the following terms:

i. Managed Live Chat Services Overage Fees will be charged based on the package and rate documented on the Sales Agreement;

ii. Overage Fees shall apply once the monthly chat allotment outlined in the Sales Agreement has been reached and shall be billed in the normal course of invoicing for the Managed Live Chart Services, including via any credit card provided by Customer to Postmedia for billing purposes; and

iii. If there is no credit card on file for Customer, Customer authorizes Postmedia to charge, in lieu of specific Overage Fees, up to 20% of the monthly Fees for Managed Live Chat Services, as indicated on the Sales Agreement.

 

10.6    Self-Serve Live Chat Services. If purchased through a Sales Agreement, Postmedia will provide Customer with the Self-Serve Live Chat Services subject to the additional terms and conditions as set forth below:

a) Chat Sessions & Availability. It is the sole responsibility of the Customer to answer incoming chat or support requests from End Users, in its sole discretion and in accordance with its own policies.

b) Knowledge Base. The Customer may choose, in its sole discretion, to develop and implement a Knowledge Base feature, which can be made available to the Customer and the content of this Knowledge Base shall be the property of the Customer.

c) Installation of Software. Customer agrees to provide Postmedia with access to any Customer Site host in order for Postmedia to install the necessary software required for the Self-Serve Live Chat Service on the applicable Customer Site domain. In the event that the Customer does not provide Postmedia with such access, Postmedia shall license to Customer, in accordance with the License provisions described herein, the necessary code and software required for Customer to install the same on its own.

10.7    Social Media Management Service – If purchased through a Sales Agreement, Postmedia will provide Customer with the Social Media Management Services subject to the following additional terms & conditions:

(a) Scope of Service

i. Customer appoints Postmedia to create/manage its social media marketing efforts on its existing or hereafter created Social Media Accounts. Social Media Management Services include Optimization services.

ii. Both parties agree that neither Customer nor Postmedia will do anything that will jeopardize access to these Social Media Accounts and each party shall abide by the specific terms of use associated with all Social Media Platforms. Should access to any Social Media Account be denied through the fault of Customer, Customer shall still be responsible for the Fees for Social Media Management Services, for the Term of this Agreement.

iii. Postmedia hereby fully authorizes, and agrees that, Postmedia will be posting, on behalf of Customer, certain content (which may include Customer Materials provided by Customer) to Customer’s Social Media Account(s), in accordance with the number of posts per month outlined in the Customer’s Sales Agreement (the “Post Count”).

iv. Customer acknowledges that Postmedia is not responsible for the quality of service, security, data privacy, change in terms of service or uptime availability (online access) for any Social Media Platform.

v. Customer represents and warrants that it has the full right and any appropriate licenses (if needed) for any and all Customer Materials provided to Postmedia for use in providing the Social Media Management Services.

vi. Customer understands and accepts that the type of content posted by Postmedia to the Customer’s Social Media Accounts will be a mixture of both engaging content and marketing content and the objective is to provide more exposure for Customer’s business or organization. Not all content posted will be of a sales nature but may instead be humorous, entertaining, timely, news orientated or holiday or day specific.

vii. Post Counts do not accrue nor do they “carry over” to the next calendar month if unused during any month during the Term. All content, in written or image form, posted to Customer’s Social Media Account by Postmedia, in its sole discretion, shall be the sole property of Postmedia, except to the extent that any such content contains Customer Materials.

viii. Any content published by Postmedia on Customer’s Social Media Accounts during the Term may be allowed to remain available online only in connection with the Social Media Account created or managed by Postmedia as part of these Marketing Services and cannot be used on any other Social Media Platform or by any other means or party without the express written consent of Postmedia, which Postmedia may withhold in its sole discretion.

ix. Upon termination of this Agreement for any reason, and subject to Customer making payment of all Fees owing, all Customer Social Media Accounts of Customer shall remain the property of Customer.

(b) Social Account Management

i. The Subscription Period for Social Media Management services will begin upon signature of a Sales Agreement between Customer and Postmedia, within fifteen (15) days of Start Date , and shall require the provision of all of the following by Customer to Postmedia:

     1. Completion of required elements of the Social Media Management intake questions.

     2. Username, passwords or other proper access credentials for any existing Customer Social Media Accounts.

ii. Failure to provide the items listed above may or will delay the commencement of the Social Media Management Services, but Customer will still be invoiced for the applicable time periods during which Postmedia attempted to provide such services.

iii. Unless Customer has elected to approve all content in advance of posting, content will be posted automatically by Postmedia to Customer’s Social Media Accounts on the date indicated in the notification e-mail provided by Postmedia, unless Customer replies with a request to edit such content in advance of the date and time indicated in such email.

     1. In the event that Customer disapproves of the content, the Customer shall be required to provide an edited version of the content or specific instructions to modify the content and shall provide the same to Postmedia in advance of the date and time indicated in the Postmedia email. If Customer fails to comply with the foregoing, Postmedia shall decide, in its sole discretion whether or not to post the content. If the content is not posted, it shall nevertheless still count towards the Customer’s Post Count as set forth in the Sales Agreement.

iv. If Customer elects to approve all content posted to its Social Media Accounts, as indicated to Postmedia during the Set-Up Period, Customer agrees to provide Postmedia with its approval or rejection of any suggested content as quickly as possible, but in no event later than the notice period provided in any email request for approval of such content. Failure to provide approval will delay or may negate the relevance or desirability of any information being posted to the Social Media Account. In the event that Postmedia decides, in its sole discretion, not to post any content as a result of Customer’s failure to provide its approval, such post shall still count toward the Post Count provided to Customer in accordance with its Sales Agreement.

v. In addition to the foregoing, the following procedures shall apply when the Customer has elected to approve all content to be posted to its Social Media Accounts:

1. Customer shall be notified, via email, that there is content to approve.

2. A link to a Postmedia-hosted portal shall be included in the notification email, which can be accessed by Customer in order to provide feedback and approval with respect to content.

3. If Customer approves the content prior to the suggested date and time provided by Postmedia, that content shall be posted to Customer’s Social Media Account(s) and that post will count towards the Customer’s Post Count.

4. In the event that Customer disapproves of the content, the Customer shall be required to provide an edited version of the content or specific instructions to modify the content and shall provide the same to Postmedia in advance of the date and time indicated in the Postmedia notification email. If Customer fails to comply with the foregoing, Postmedia shall not post the content, but it shall nevertheless still count towards the Customer’s Post Count as set forth in the Sales Agreement.

(c) Investment Boosting. Customer may, in its sole discretion from time to time, choose to pay additional Fees to promote certain posts or grow its audience on selected Social Media Platforms via an Investment Boost. The option to purchase an Investment Boost can be done either via a signed Sales Agreement, or, in electronic format, either via e-mail or an online order form.

10.8    Social Media Management Self-Serve Portal. If purchased through a Sales Agreement, Postmedia will provide Customer with the Social Media Management Self-Serve Portal Services by providing Customer with credentials to access a single point of entry where Customer can view and respond to all of its private messages, postings, scheduled postings, reporting, and monitoring for all of its Social Media Accounts across various Social Media Platforms.

10.9    Search Engine Optimization – If purchased through a Sales Agreement, Postmedia will provide Customer with the Search Engine Optimization Audit and Search Engine Optimization Services subject to the following additional terms and conditions:

a) Search Engine Optimization Audit (“SEO Audit”), Costing and Custom Recommendation

i. If this service is selected by Customer either by Sales Agreement or, in electronic format, either via e-mail or an online order form, Postmedia will perform a Search Engine Optimization Audit and keyword research to identify areas of improvement to Customer’s Site including, Site structure, Site design, Site content, as well as Site authority based on Customer’s provided area(s) of focus.

ii. Following the SEO Audit, Postmedia will make certain recommendations to Customer for the provision of SEO Services. Upon approval of the same, Postmedia will begin to provide Search Engine Optimization Services on a Subscription basis.

iii. Costing associated with any engagement to provide additional services such as, without limitation, changes (including as a result of changes in size of the Customer’s business), and edits in layout or structure, source code alterations or any other service will be billed by the hour, at a rate agreed upon, in advance. Customer may approve such additional services either via a signed Sales Agreement, or in electronic format, either via e-mail or an online order form.

iv. SEO Services may be carried out on-site (on the Customer’s premises) or remotely; provided, however, that for any on-site work, the Customer will be required to ensure the appropriate information is supplied in an orderly fashion and readily available to Postmedia for delivery of the services.

v. SEO Services include Optimization services.

b) Website Access & Terms

i. During the Term, no web design/SEO company, other than Postmedia, will have access to the Customer’s Site(s). If Customer needs to give access to its Site(s) to any third party for any reason other than website design, revamp, modification or SEO, which services are provided strictly by Postmedia, then Postmedia will be informed of the same, by email, prior to Customer giving such access. Postmedia will not be responsible for any of the Customer or Hosted Sites, or search engine rankings, if access is given by the Customer to a third party, contrary to the provisions of this Section 10.9(b)(i).

ii. If any services covered by this Agreement or Customer’s Sales Agreement for SEO Management services are undertaken by any third party without notice to Postmedia as required hereby, then Postmedia may, in its sole discretion, terminate this Agreement and any outstanding Fees payable under such Agreement shall become immediately due and payable in full by the Customer to Postmedia.

iii. Customer grants to Postmedia full right and authority to (a) submit Customer Sites or Hosted Sites to search engines, directories, and/or any other resource or relevant sites; (b) optimize the structure and content of Customer Sites or Hosted Sites; and (c) maintain and/or improve the front-end design of the Customer Sites or Hosted Sites.

iv. In order for Postmedia to provide the SEO Services, Customer must provide Postmedia with log-in information (username and password) to gain administrative access to Customer’s Sites. Postmedia will maintain the confidentiality and security of all such log-in information. During the Term, Postmedia reserves the right, in its sole discretion, to change the log-in information of any Customer Site if Postmedia deems this necessary to maintain confidentiality and will notify Customer of the same.

v. Customer must inform other webmasters or anyone else who has access to the Customer Sites that Postmedia has been engaged to provide the SEO Services with respect to Customer’s Sites.

vi. Customer hereby authorizes Postmedia to proceed with implementation of all Optimization strategies on Customer Sites, as Postmedia deems fit.

vii. Customer is responsible for ensuring that all Customer Sites shall be active and accessible during the Term.

viii. Customer authorizes Postmedia to use a series of web and SEO tools to install and configure the Customer’s Sites, including, without limitation, Google Analytics, Google Search Console and Tag Manager.

c) Acknowledgement – Customer acknowledges, and Postmedia disclaims all responsibility and liability for occurrence of the following, with respect to SEO Services:

i. Postmedia has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. Customer’s Sites may be excluded from any directory at any time at the sole discretion of the search engines or directories. Postmedia will resubmit those Customer Sites that have been dropped from any search engine index.

ii. Due to the competitiveness of some keywords/phrases, ongoing changes in search engine ranking algorithms and other competitive factors, Postmedia does not guarantee positions/rankings on search engines for any particular keyword, phrase or search term.

iii. Some search engines may take 1 to 3 months, and in some cases longer, after submission/resubmission to list a Customer Site. Occasionally, search engines will stop accepting submissions for an indefinite period of time.

iv. Occasionally, search engines will drop listings for no apparent or predictable reason. Often listing will “reappear” without any additional submissions. Should the listing not reappear, Postmedia will re-submit the site based on the current policies of the search engine in question.

For clarity, upon the occurrence of any of the above, Customer shall still be liable to Postmedia for all Fees associated with SEO Services.

d) Intellectual Property:

i. The source code and back-end tactics, technologies and processes used by Postmedia to provide the SEO Services will remain the Intellectual Property of Postmedia.

ii. On termination of this Agreement for any reason, all Fees outstanding for the remainder of the Term shall become immediately due and payable and all SEO Services and Work Product performed or delivered by Postmedia in connection with the SEO Services on the Customer Sites will cease or be removed.

e) Hosting:

i. Customer represents and warrants that its Customer Sites are not hosted with free web hosting providers.

ii. If there is ever a concern that the current hosting IP address for Customer’s Site(s) may be part of a ‘bad neighborhood’ , or for others reasons of Optimization, as determined by Postmedia in its sole discretion, then Postmedia may request the Customer to change its hosting provider, at Customer’s expense.

 

10.10     Responsive Website and Campaign Landing Page Design and Hosting – If purchased through a Sales Agreement, Postmedia will provide Customer with Responsive Website and Campaign Landing Page Design and Hosting Services, subject to the following additional terms and conditions:

a) Platform

i. The platform for any Customer Site, Hosted Site or Campaign Landing Page will be WordPress only.

ii. Design of Customer Sites, Hosted Sites or Campaign Landing Pages will be limited to the choices available in the Avada theme package; provided, however, that any theme may be modified in the future, in the sole decision of Postmedia.

iii. The cost of the initial theme for a Customer Site is built into the price of the SEO Services on the Sales Agreement. However, any updates or enhancements after the initial 12-month Subscription Period will be billed to Customer at Postmedia’s then-current rates.

iv. Response Website and Campaign Landing Page Design and Hosting will include Optimization services.

b) Copyright

i. The source code, scripts, CSS, stored procedures, functions, triggers programmed into SQL databases, and all other files used by Postmedia in providing the Responsive Website and Campaign Landing Page Design and Hosting Services remain the Intellectual Property of Postmedia and may not be copied and used by any other party without the consent of Postmedia, which it may withhold in its sole discretion.

ii. All Customer Materials, including Customer logos, unique images (i.e. of their premises, work force and their business) and all written copy included in a Customer Site, Hosted Site or Campaign Landing Page, shall belong to the Customer and shall be covered under their copyright. Postmedia will not use Customer Materials, except in the provision of the Responsive Website and Campaign Landing Page Design and Hosting Services, without the express permission of the Customer.

c) Hosting

i. Postmedia will not be liable to the Customer for any compensation in respect of any down-time that may occur with the hosting of the Customer Site(s) or Hosted Site(s).

ii. With regard to any images or files uploaded to Customer’s Site by Customer, it is the responsibility of the Customer to retain a copy of the same on their local PC/LAN. In the unlikely event of hard drive failure or other technical failure with the dedicated web server, it will be the responsibility of the Customer to re-upload these files.

iii. In the event that a Customer wishes to move a Customer Site or Hosted Site and/or SQL server database to a third party web server, Postmedia will cooperate fully, subject to all outstanding Fees being becoming immediately due and payable by Customer to Postmedia, along with a negotiated fee to purchase a license the copyright of the source code etc., as evidenced by a written agreement between the parties.

d) Website Services

i. Postmedia will not be liable to the Customer for any interruption, non-performance, or cancellation of the services provided by Third Party Suppliers, as the same relate to these Responsive Website and Campaign Landing Page Design and Hosting Services.

e) Search Engines

i. Responsive Website and Campaign Landing Page Design and Hosting Services specifically do NOT include keyword-targeted, Search Engine Optimization, and are not intended to guarantee search engine organic rankings for any specific keywords. This is a separate service to be purchase by Customer on a Sales Agreement.

ii. Postmedia accepts no responsibility or liability to the Customer for the actual organic rankings achieved by a Customer Site or Hosted Site nor with respect to how such rankings may vary over time.

11.    Customer Support

If Customer support is available in respect of one or more Marketing Services, the contact details for the applicable support services will be set out in the Sales Agreement.

 

 

 

SCHEDULE A

CREA RULES

DATA DISTRIBUTION FACILITY (DDF®) RULES

All Boards and Associations will be required to adopt and enforce the following rules. Any changes to the rules must be approved by CREA.

1. Definitions

a) CREA DDF® – a permission based data distribution facility provided by CREA to facilitate the distribution of its participating members’ listing information to National Pool Websites, Member Feed Websites, Franchisor Websites, and Third Party

b) Franchisor – a company that owns the overall rights and trademarks of the company and enters into franchise agreements with another entity (a franchisee) to allow them to use these rights and trademarks to do

c) Franchisor Direct Feed – a feed of Listing Content from a Franchisor’s franchisees that is made available to the Franchisor for display on their

d) Franchisor Pool – a pool of Listing Content that is made available to all participating Franchisors for display on their

e)Franchisor Website – a Website operated by a Franchisor who has entered into a contract with CREA to receive a data feed provided by the CREA DDF®.

f) Listing Content – the MLS® listing information, including photographs and images, which a Participant chooses to send to National Pool Websites, Franchisor Websites, Member Feed Websites, and Third Party Websites based on data templates that contain a number of fields set by

g) Listing Marketing and Permissions Management– an application provided by CREA used to opt- in to the CREA DDF® and define which destinations are to receive the Participant’s

h) National Pool Website – a Website owned and operated by a Participant that displays the listings of other Participants, populated using a data feed provided by the National Shared Pool Module, which can be filtered based on defined and objective

i) Participants – all Participating Brokerages and Participating

j) Participating Brokerage – a member brokerage that is actively engaged in providing real estate brokerage services to buyers or sellers in real estate transactions and who consents to display of its listings on Websites through the CREA DDF®.

k) Participating Salesperson – a REALTOR® that is registered with a Participating Brokerage who also chooses to participate in the CREA DDF® with the consent of his or her

l) Member Feed Websites – a Website owned and operated by a Participant that displays the Participant’s own listings or a data feed of all their Participating Brokerage’s listings populated using a data feed provided by the Member Feed

m) Recognized Search Engines – a search engine that is on the CREA maintained list of Recognized Search

n) Scraping – use of a software program or other method to extract Listing Content, such as photographs and/or text, from a

0) Technology Provider – a company that has entered into a data access agreement developed by CREA to operate a National Pool Website or a Member Feed Website on behalf of a Participating Brokerage or Participating

p) Third Party Websites – Websites other than National Pool Websites, Member Feed Websites, or Franchisor Websites that are provided a data feed of Participants’ listing information from the Third Party

q) Website – any electronic display of or access to content in any manner including mobile applications.

2. General Application of Rules

All Participants must adhere to the following rules, all other MLS® rules and regulations, guidelines and policies that may be adopted by the Board/Association or CREA in relation to the DDF® from time to time, and to all applicable provincial or federal legislation and regulation.

3. Alteration and Addition of Data

a) Participants shall not modify or manipulate information relating to other Participants’

b) Participants may augment their own Listing Content on their National Pool Website or Member Feed Website with additional data not otherwise prohibited from display, but they shall not add data to other Participants’ Listing

c) Participants may co-mingle exclusive listings with the Listing Content they receive through the CREA DDF® on National Pool Websites and Member Feed

4. Authorization

a) Participating Brokerage Consents

i. Participating Brokerages’ consent for display of their Listing Content on National Pool Websites, Member Feed Websites, Third Party Websites, and/or Franchisor Websites is provided by opting-in to these modules through the Listing Marketing and Permissions Management

ii. A Participating Brokerage that has opted-in to the National Shared Pool Module may also consent to having its Listing Content sent to the Franchisor Websites by opting into the Franchisor Pool in this portion of the CREA DDF® through the Listing Marketing and Permissions Management

iii. A Participating Brokerages that has opted-in to the Technical Solutions Module may consent to have their Listing Content sent to their Franchisor’s Website by selecting the Franchisor’s Direct Feed in the Listing Marketing and Permissions Management

iv. A Participating Brokerage that has opted-in to any or all of the National Shared Pool Module, Member Feed Module, and Third Party Module may give permission to its salespeople to also participate in any or all of these modules through the Listing Marketing and Permissions Management application.

v. If a brokerage chooses not to opt-in to the CREA DDF® (even for the limited purpose of permitting its salespeople to participate), its salespeople cannot participate in the CREA DDF®.

vi. Participating Brokerages that opt-in to any of the CREA DDF® modules hereby grant CREA a royalty-free, perpetual license to use, reproduce, transmit, distribute, and exhibit the Listing Content for the purposes of the CREA DDF®. Participating Salespersons’ Consents

b) Participating Salespeople that have the permission of their Participating Brokerage may choose to participate in the National Shared Pool Module and/or the Member Feed Module, which will enable them to receive a feed of data for display on their

i. Participating Salespeople that have the permission of their Participating Brokerage may consent to participate in the Third Party Module, which will enable them to send Listing Content to Third Party

ii. Participating Salesperson consent is provided by opting-in through the Listing Marketing and Permissions Management

c) Consent to Display Listings

Participants must consent to contribute all their MLS® listings to the National Shared Pool Module unless they have been instructed by a seller not to include a particular listing in the DDF®.

Where a property is listed by more than one brokerage or salesperson and any one of those brokerages or salespersons is participating in any data feeds of the CREA DDF® that property will be included in the applicable data feed(s).

5. Use of CREA DDF® Data Feed

a) No use of Listing Content until Permissions Set

i.Participants may not pull a feed of Listing Content for a National Pool Website until after they have opted in to the National Shared Pool Module through the Listing Marketing and Permissions Management

ii.Participants may not pull a feed of Listing Content for a Member Feed Website until they have opted in to the Member Feed Module through the Listing Marketing and Permissions Management application.

b) Participants operating National Pool Websites and Member Feed Websites must refresh their Websites at least once every 24 hours but no more frequently than once an hour. All Listing Content that is no longer current after a refresh must be removed from the National Pool or Member Feed

c) Participants may not use the Listing Content they receive through the CREA DDF® for any purpose other than:

i. display on their National Pool Websites and Member Feed Websites;

ii. to create a mobile app, the sole purpose of which would be to advertise the listing content they receive through the CREA DDF® in accordance with these rules; and

iii. to create marketing materials for their own listing content

This does not require participants to prevent indexing of the Listing Content by Recognized Search Engines.

d) Participants may not operate more than five Websites using the Listing Content they receive through the CREA DDF®.

e) Participants shall not use the Listing Content they receive through the CREA DDF® in the operation of a Website through which a member provides online brokerage services to consumers.

f) Participants shall not allow consumers to write comments or reviews about a particular listing or displays a link to such comments or reviews about a particular listing on their National Pool Websites.

g) The Listing Content that Participants receive, or any portion thereof, may not be displayed on any Website except a National Pool Website or a Member Feed

h) Participants must not permit any portion of the Listing Content they receive to be used or provided to any person or corporation for any purpose other than those expressly provided for in these

i) Use of a Technology Provider

i. Participants may provide the Listing Content to a Technology Provider who is operating a National Shared Pool Website or a Member Feed Website on their behalf, but Participants are responsible for the conduct of any Technology Provider they

ii. Participants must opt-in to the National Shared Pool Module and/or Member Feed Module through the Listing Marketing and Permissions Management application before retaining the services of a Technology

j) Participants may provide their Listing Content to a marketing company who they have entered into a contract with to receive marketing materials, but Participants are responsible for the conduct of any marketing company they

k) Participants shall take reasonable precautions to prevent Scraping of their National Pool Websites and Member Feed Websites, and to prevent the Listing Content from being displayed on any internet Website other than National Pool Website or a Member Feed Website. Reasonable precautions shall include but not be limited to:

(i) regularly monitoring their Website for signs of Scraping; and

(ii) taking necessary steps against scrapers, such as blocking

l) Participants shall immediately advise their Board/Association whenever they suspect that Scraping has

m) Nothing in this policy prohibits Participants from providing to third parties or displaying on other Websites information concerning their own listings created by them or received independently of the CREA DDF®.

6. Display Requirements

a) All Listing Content displayed on a National Pool Website or a Member Feed Website must:

i) Display the MLS® and REALTOR® logos;

ii) Display the listing brokerage name and any additional information that is required by provincial law/regulation, which must be prominently displayed in text large enough for a consumer to easily read, and appear with the Listing Content (not requiring consumers to click on any hyperlinks, etc.); and

iii) Display the watermarks provided by CREA on

b) Listing Content must not display:

i) Any advertising or co-branding on a National Pool Website;

ii) Any confidential information including past sales prices, the cooperating commission or fee, etc. on a National Pool Website or a Member Feed

c) Every page of all National Pool Websites and Member Feed Websites must display the following text: “MLS®, REALTOR®, and the associated logos are trademarks of The Canadian Real Estate Association”.

d) All National Pool Websites must require consumers to agree to terms of use before accessing the Listing Content through a click-wrap agreement that contains, at a minimum:

(i) Text that states CREA is the owner of the REALTOR® and MLS® trademarks: “REALTOR®, REALTORS®, and the REALTOR® logo are certification marks that are owned by REALTOR® Canada Inc. and licensed exclusively to The Canadian Real Estate Association (CREA). These certification marks identify real estate professionals who are members of CREA and who must abide by CREA’s By-Laws, Rules, and the REALTOR® Code. The MLS® trademark and the MLS® logo are owned by CREA and identify the quality of services provided by real estate professionals who are members of ”;

(ii) Text that disclaims liability of CREA as a result of providing the data feed: “The information contained on this site is based in whole or in part on information that is provided by members of The Canadian Real Estate Association, who are responsible for its accuracy. CREA reproduces and distributes this information as a service for its members and assumes no responsibility for its accuracy”;

(iii) Text that states the website is operated by a brokerage or salesperson who is a member of The Canadian Real Estate Association; and

(iv) Copyright ownership text: “The listing content on this website is protected by copyright and other laws, and is intended solely for the private, non-commercial use by individuals. Any other reproduction, distribution or use of the content, in whole or in part, is specifically forbidden. The prohibited uses include commercial use, “screen scraping”, “database scraping”, and any other activity intended to collect, store, reorganize or manipulate data on the pages produced by or displayed on this ”

7. Filtering

a) Participants may filter the listings they choose to display on their National Pool Websites based only on objective

b) Subject to applicable laws and regulation, the only allowed filter criteria are:

(i) Geography or location;

(ii) List price;

(iii) Rentals;

(iv) Property type (e.g., condominiums, cooperatives, single-family, multi-family).

(v)Property features (e.g., water front)

Filtering of listings displayed on any National Pool Websites must be independently made by each Participant.

8. Enforcement

a) Participants must make their National Pool Websites and Member Feed Websites directly accessible to Boards, Associations and CREA for the purpose of monitoring/ensuring compliance with the applicable rules and

b) Within three business days after being requested by the Board/Association or CREA to do so, a Participant must make changes to its National Pool Website or a Member Feed Website as required by the Board/Association or CREA to resolve any violation of the rules, regulations, or policies, during which time the Board/Association or CREA may suspend the Participant’s access to the CREA DDF®.

c) Notwithstanding subsection (b), if a Participant is in violation of any rule, regulation, or policy of the Board/Association or CREA relating to the operation of any of a National Pool Website or a Member Feed Website, the Board/Association or CREA may, in addition to all other remedies available, immediately terminate or suspend the Participant’s access to the CREA DDF® or disable DDF® functions and features for that Participant, or direct CREA to immediately terminate or suspend the Participant’s access to the CREA DDF® or disable DDF® functions and features for that

d) If a Participant ceases to participate in the CREA DDF® or has their access terminated or suspended by their Board, Association, or CREA, they will not be able to contribute their listings to the DDF® nor receive a feed of listings for display on their website(s). They shall not display any Listing Content from the CREA DDF® and must destroy any local copies of the Listing Content.