Marketwired Terms and Conditions

 

SCHEDULE A
COMMUNICATIONS SERVICES TERMS AND CONDITIONS


Subject to the following terms and conditions, Marketwired will provide Client with such wire distribution, web hosting, media database and other related communications services as Client may request from time to time (the “Services”). This Schedule A applies to the provision by Marketwired of any and all Services under the Agreement. If Client is purchasing Mediahub and/or Impress Services, the additional terms and conditions set out in Section 12 and/or 13 will also apply.


1. DEFINITIONS

A. As used throughout the Agreement, the following shall have the meanings set forth below unless otherwise indicated:

Affiliate” means, with respect to any entity, another entity that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, such entity. For purposes of this definition, “control” means the possession, direct or indirect, of the power to direct or cause the direction of management and policies of the entity, whether through the ownership of voting securities, by contract or otherwise.
Authorized Users” means an individual who is authorized by Client to use the Services, on the Client’s behalf and who has been supplied with a user identification and password by Client (or by Marketwired at Client’s request). Authorized Users may include, but are not limited to Client, its employees, consultants, contractors and third parties with which Client has a business relationship, including its customers.
Client Materials” means all information and materials submitted by Client to Marketwired for use in the Services.
Feedback” means any suggestions, enhancement requests, recommendations or other feedback provided by Client or its Authorized Users to Marketwired relating to operation of the Services.
Fees” means the fees for the Services set out in the applicable Schedule Z - Order Form. “Filing Fees” means user filing fees charged by filing sites, such as SEDAR, or government or regulatory filing fees or annual fees required to accompany filings as charged by the Canadian, United States, or United Kingdom securities administrators.
Malicious Code” means any disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots, or other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data.
Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes.

B. In the event of a conflict between the terms of a document, the document with the higher precedence shall govern to the extent of the conflict (unless a section of the document is specifically described as superseding conflicting terms in the document(s) with a higher precedence): (a) the cover page; (b) the Schedules; and (c) any exhibit, annex or other document attached to a Schedule.

 

 

2. PROVISION OF THE SERVICE

Client shall order the Services by completing and signing a Schedule Z - Order Form (hereinafter referred to as either an “Order Form” or as a “Schedule Z – Order Form”). Each accepted, fully executed Order Form shall be incorporated by reference into the Agreement as successive schedules to the Agreement. In the event that Client requires a purchase order number issued prior to payment of any Marketwired invoices issued pursuant to the applicable Order Form, then such purchase order number must be provided to Marketwired prior to the activation of the Services. Client’s execution and return of the applicable Order Form to Marketwired without designating a purchase order number is deemed an acknowledgment that no purchase order is required for payment of invoices hereunder. Terms, provisions or conditions on any purchase order, if any, together with any acknowledgments or other business processes, forms or writing that Client may use or require in connection with the provision of the Services from Marketwired are of no force and effect and will have no effect on the rights, duties and obligations of the Parties hereunder, regardless of any failure of Marketwired to object to such matters. If Marketwired performs Services before the Effective Date, all Services provided by Marketwired before that date will be considered to have been provided under all of the terms and conditions of the Agreement.

 

3. CLIENT OBLIGATIONS; CLIENT REPRESENTATIONS AND WARRANTIES

A. Client shall not allow access to or use of the Services by anyone other than Authorized Users. Client is responsible for all activities that occur in Authorized User accounts and for Authorized Users' compliance with the Agreement. Client shall: (i) prevent unauthorized access to, or use of, the Services, and notify Marketwired promptly of any such unauthorized access or use and shall use its best efforts to cooperate in maintaining the security of, access to and use of the Services; (ii) comply with all applicable local, provincial, federal and foreign laws in using the Services; and (iii) use the Services only for purposes that are permitted by the Agreement. In addition, if Client requests that Marketwired distribute Client Materials to email recipients located in Canada, Client shall ensure that all of its email recipients have opted-in to receive Client’s news prior to requiring Marketwired to distribute to said recipients.
B. Client is solely responsible for the accuracy and authenticity of the Client Materials submitted by Client to Marketwired. Marketwired reserves the right to reject copy when necessary in its judgment. Client represents and warrants to Marketwired that it is entering into this Agreement as principal and has all necessary rights, title and interest and is authorized to submit the Client Materials to Marketwired for distribution, broadcasting and/or filing; that the Client Materials are true and accurate; that the Client is not impersonating any person or entity or misrepresenting Client’s affiliation with any person or entity; that the Client Materials comply with all applicable laws and regulations; that the Client Materials will not violate or infringe upon any copyright, trademark, or service mark rights, any other property rights, non-solicitation rights, intellectual property rights, confidentiality rights or other proprietary or contractual rights of any person or entity, including, but not limited to, those relating to data privacy (including ensuring that all appropriate consents are in place in order to disclose any personal information contained in the Client Materials), communication and exportation of technical or personal data and that all Client Materials are free of all Malicious Code or other items of a destructive nature; that the Client Materials do not contain any information which is libelous, defames or slanders any person or entity,; and that Client has investigated the desirability of utilizing Marketwired’s services and is not relying on any representation, guarantee, or statement other than as set forth in this Schedule A or the Agreement or in the materials on Marketwired’s web site, www.marketwired.com.
C. Client shall not, and shall not allow third parties to: (i) access (or attempt to access) any of the Services by any means other than through the user id that is provided by Marketwired, unless Client has been specifically allowed to do so in a separate agreement with Marketwired; (ii) access (or attempt to access) the Services through any automated means (including use of scripts or web crawlers); (iii) engage in any activity that interferes with or disrupts the integrity or performance of the Services (or the servers and networks which are connected to the Services) or use of the Services by other Clients (iv) use the Service as a service bureau or to provide a service directly or indirectly to third parties, including, without limitation, for the creation or manipulation of data to be sent to a third party or for the processing of data provided by a third party; (v) access the Services in order to copy or imitate any ideas or features, or build a product or service similar to the Service, or use similar features, software, functions or graphics as those of the Services, whether or not intended to compete with the Service; or (vi) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose.
D. The Parties agree that the Services are not intended or designed to securely host and store any information that pertains to a specific person and that can be linked to such person (“Personal Data”). Client shall not submit to the Services or use the Services to collect, process or store such Personal Data, including, without limitation, any information which is subject to privacy laws or other similar laws in the jurisdiction in which Client is accessing the Services, except where the Client has all appropriate consents in place in order to disclose such Personal Data through the Services.
E. Marketwired maintains a set of policies governing the allowable usage of its Services which are provided to Client upon registration for an account. (“Policies”). Client agrees to adhere to the Policies, as a necessary condition to using the Services.
F. Client acknowledges and agrees that at all times it shall be responsible for all of its actions and the actions of Authorized Users occurring through the use of its connection to the Marketwired. Client agrees to keep its connection to the Marketwired systems secure and shall immediately notify Marketwired in writing of any breach of security.

 

4. FEES AND PAYMENT

A. Client agrees to pay the Fees set out in the Order Form(s). Unless otherwise specified in an Order Form, Fees shall be invoiced annually and payable in advance. Payment for the Fees is due without withholding, deduction or setoff of any amounts for any purpose. Fees may be based on Services purchased and not actual usage, payment obligations are non-cancelable, and Fees paid are non-refundable. Client shall pay any additional charges that Marketwired incurs as a result of Client’s method of payment.
B. Payment for the Fees is due net 30 days from the invoice date (“Due Date”). For any payment not received from Client by the Due Date, interest shall accrue on past due amounts at the rate of 1.5% per month, but in no event greater than the highest rate of interest allowed by law, calculated from the Due Date until the date that payment is received by Marketwired. Client shall reimburse Marketwired for the reasonable costs of collection, including reasonable fees and expenses of attorneys.
C. If Client's account remains unpaid after the Due Date, in addition to any of its other rights or remedies contained in the Agreement, Marketwired reserves the right, upon notice to Client, to suspend the Services provided to Client, until such amounts are paid in full.
D. Unless otherwise stated, Marketwired’s Fees do not include any Taxes or Filing Fees. Client is responsible for paying all Filing Fees and Taxes associated with its purchases, orders and the Services provided hereunder, excluding taxes based on Marketwired’s net income or property. If Marketwired has the legal obligation to pay or collect Taxes or Filing Fees for which Client is responsible, Marketwired shall include on the applicable invoice separate line items indicating the appropriate amount of such Filing Fees or Taxes which shall be paid by Client, unless in the case of taxes Client provides Marketwired with a valid applicable tax exemption certificate.
E. The price actually charged for a specific Service will be the price in effect at the time the Service is requested. Marketwired reserves the right to increase the Fees for the Services upon 90 days’ written notice to the Client. Client may cancel the relevant Service if Marketwired raises its Fees for such Service by more than five percent (5%). If Client exercises this right to cancel, Client must notify Marketwired within thirty (30) days of the date of Marketwired’ increase notice. The relevant Service will be cancelled from the date on which the Fees would have increased. Marketwired may, at any time, adjust, or change the basis for calculating, Fees to the extent such changes of Fees are based on changes to related charges at any time. Marketwired will endeavor to provide reasonable prior notice of any change to related charges, but may not be able to do so if the change is imposed by a third party.

 

5. INTELLECTUAL PROPERTY; USE

A. As between Client and Marketwired, Client retains all intellectual property rights in the Client Materials to the extent of Client’s intellectual property rights in such Client Materials. Client will ensure, for the term of this Agreement, that (a) it has all necessary permissions to include and process, and allow Marketwired to include and process, Client Materials in the Services, (b) Client’s provision, and Marketwired’s use, of the Client Materials pursuant to this Agreement does not infringe third-party rights or any law or regulation, and (c) the Client Materials as provided by Client are valid, accurate and complete. Client grants Marketwired permission to use, store and process Client Materials in the Services.
B. As between Client and Marketwired, Marketwired retains all intellectual property rights in the Services, whether or not marked. Client shall not modify or remove any markings or any proprietary rights notices of Marketwired or its third-party providers from any of the Services. Except to the extent otherwise specified in any Order Form, (a) Client shall not authorize or permit any individual or entity other than as authorized in an Order Form to use or access the Services and (b) any deliverable provided to Client in connection with this Agreement (excluding Client Materials and Client Confidential Information) shall belong to Marketwired and Client is granted a non-exclusive, non-transferable, limited license to use such deliverable, for its internal business purposes during the Term of the applicable Order Form. Marketwired reserves all other rights in the Services.
C. Customer acknowledges that, in accordance with the United States Digital Millennium Copyright Act (DMCA) or other similar laws or regulations in other jurisdictions, Marketwired may remove Client Materials from the Services if properly notified that the Client Materials infringe a third party's copyright. Consistent with the foregoing, Marketwired has adopted and implemented a repeat copyright infringer policy; per this policy, Marketwired may, in appropriate circumstances and if it is determined that Customer is a repeat copyright infringer, terminate Client’s access to the Services.

 

6. WARRANTIES; DISCLAIMER

A. MARKETWIRED WARRANTS THAT IT SHALL PROVIDE THE SERVICES IN A PROFESSIONAL AND WORKMANLIKE MANNER. CLIENT’S EXCLUSIVE REMEDY AND MARKETWIRED SOLE LIABILITY FOR BREACH OF THE ABOVE WARRANTY IS TO TERMINATE THE AGREEMENT OR AFFECTED ORDER FORM PURSUANT TO SECTION 9.A.
B. NOTWITHSTANDING ANYTHING TO THE CONTRARY, MARKETWIRED AND ITS THIRD-PARTY PROVIDERS MAKE THE SERVICES AND THIRD PARTY DATA THEREIN AVAILABLE ON AN “AS IS”, “AS AVAILABLE” BASIS AND, EXCEPT AS PROVIDED IN SECTION 6.A ABOVE, NONE OF MARKETWIRED, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE THIRD-PARTY PROVIDERS MAKE ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, INCLUDING ANY REPRESENTATION OR WARRANTY OF QUALITY, PERFORMANCE, COMMERCIAL UTILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NONE OF MARKETWIRED, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE THIRD-PARTY PROVIDERS REPRESENT OR WARRANT THAT THE SERVICES OR ANY THIRD-PARTY DATA PROVIDED THEREIN WILL BE COMPLETE, TIMELY, UNINTERRUPTED OR ERROR-FREE, NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES. CLIENT AGREES THAT IT IS USING THE SERVICES AT ITS OWN RISK, THAT THE SERVICES DO NOT CONSTITUTE A RECOMMENDATION TO BUY OR SELL SECURITIES OF ANY KIND, AND THAT NONE OF MARKETWIRED, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE THIRD-PARTY PROVIDERS HAS UNDERTAKEN ANY LIABILITY OR OBLIGATION RELATING TO THE PURCHASE OR SALE OF SECURITIES FOR OR BY CLIENT OR ANY USER.
C. CLIENT WARRANTS THAT IT IS AN EXISTING LEGAL ENTITY AND THAT CLIENT’S FULL LEGAL NAME IS CORRECTLY SET FORTH ABOVE AND WILL BE SET FORTH ON EACH ORDER FORM, AND THAT CLIENT WILL PROMPTLY NOTIFY MARKETWIRED IN WRITING OF ANY CHANGE TO CLIENT’S LEGAL AND/OR BUSINESS NAME.
D. During use of the Services, there may be links (including via application programming interfaces) to web pages or servers that are not owned or controlled by Marketwired (“Third Party Webpages”). Authorized Users’ links to and dealings with Third Party Webpages are strictly between Client and the applicable third party in all respects, including without limitation, compliance with applicable third party terms of use and privacy policies. Marketwired and its licensors shall have no liability, obligation or responsibility for any such Third Party Webpages or activities by Client and its Authorized Users relating thereto, or products or promotions available on or through such Third Party Webpages. Marketwired does not endorse any sites on the Internet that are linked through the Services; such links are provided to Client and its Authorized Users only as a convenience.

 

7. INDEMNIFICATION AND LIMITATION OF LIABILITY

A. Client will defend Marketwired, its Affiliates and their respective employees, officers, directors, third-party providers and other agents (“Marketwired Indemnitees”) against any third-party claim, demand, suit or proceeding made or brought against any Marketwired Indemnitee arising out of or resulting from (a) the Client Materials or (b) Client’s use of any Service other than in accordance with the Agreement (a “Claim Against Marketwired”), and will indemnify such Marketwired Indemnitee(s) against any damages, attorney fees and/or costs finally awarded against Marketwired Indemnitees as a result of, or for any amounts paid by Marketwired Indemnitees under a settlement of, a Claim Against Marketwired.
B. Marketwired will defend Client and its employees, officers, directors and other agents (“Client Indemnitees”) against any third-party claim, demand, suit or proceeding made or brought against any Client Indemnitee alleging that Client’s use of a Service in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights granted as at the effective date of the relevant Order Form (a “Claim Against Client”), and will indemnify such Client Indemnitee(s) against any damages, attorney fees and/or costs finally awarded against Client Indemnitees as a result of, or for amounts paid by Client Indemnitees under a settlement of, a Claim Against Client. To the extent a Claim Against Client arises from or relates to Service functionality that Marketwired obtains from a third-party provider, then, subject to Marketwired diligently pursuing enforcement of its contractual recourse rights against such third-party provider and unless such Claim Against Client arises from Marketwired or any of its Affiliates infringing such third-party provider’s intellectual property rights, Marketwired’s obligations under this Section 7 shall be limited to the amount Marketwired recovers from the such third-party provider in proportion to other claims (actual or potential) arising out of the alleged infringement. The above defense and indemnification obligations do not apply to the extent a Claim Against Client arises from Client Materials, interoperation of a Service with third-party products or services not expressly approved in writing by Marketwired, Marketwired’s compliance with any custom designs, specifications or instructions provided by Client or by a third party on Client’s behalf or Client’s breach of this Agreement.
C. In this section, a “Claim” means a Claim Against Marketwired in the case where Client is the indemnifying party, and means a Claim Against Client in the case where Marketwired is the indemnifying party. Each party’s obligation to indemnify the other party under this Section 7 shall be conditioned on the indemnified party: (a) promptly, and in any event, in a time frame that does not prejudice the rights of the indemnifying party, providing the indemnifying party with notice of the Claim, (b) giving the indemnifying party sole control of the defense and settlement of the Claim (except that the indemnifying party may not settle any Claim unless it unconditionally releases the indemnified party and/or other indemnitee(s), as applicable, of all liability), and (c) giving the indemnifying party all reasonable assistance, at the indemnifying party’s expense, in the defense of the Claim.
D. If any Claim against Client is made, or if, in Marketwired’s reasonable opinion, such claim appears likely to be made, Marketwired, at Marketwired’s sole option and cost, may (a) implement measures to enable Client to continue to use the Service, (b) modify the Service so it becomes non-infringing, or (c) replace affected data and/or functionality of the Service, provided that the relevant Service remains functionally equivalent in all material respects. In the event such options are not commercially reasonable, Marketwired shall have the right, upon notice to Client, to terminate the affected Service and provide Client a prorated refund of prepaid Fees for the terminated Service, relating to the period after termination. E. The remedies provided under this Section 7 shall be the sole and exclusive remedy of each party against the other with respect to claims described in this Section 7.
F. EXCEPT WITH REGARD TO A PARTY’S INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT AND CLIENT’S OBLIGATIONS TO PAY FEES, IF EITHER PARTY IS FOR ANY OTHER REASON HELD LIABLE TO THE OTHER PARTY, INCLUDING IN CONTRACT OR IN TORT, LIABILITY IS LIMITED TO THE FEES PAID OR PAYABLE BY CLIENT FOR THE AFFECTED SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM AND SUCH LIABILITY SHALL BE IN AGGREGATE AND NOT PER INCIDENT. THE LIMITATIONS IN THIS SECTION 7.F WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
G. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, MARKETWIRED DISCLAIMS ALL LIABILITY FOR DATA THAT MARKETWIRED OBTAINS FROM CONTENT LICENSORS OR PUBLICLY-AVAILABLE SOURCES AND PROVIDES TO CLIENT AS PART OF ANY SERVICE.
H. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, REVENUES, TRADES OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL LOSS OR DAMAGE OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS IN THIS SECTION 7.H WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

 

8. CONFIDENTIALITY

A. Each of Marketwired and Client (each, “Disclosing Party”) is willing to disclose “Confidential Information” (as defined below) to the other party (as “Receiving Party”) on the condition that such information is protected as provided in this Section 8. “Confidential Information” means all information disclosed, whether orally, in writing or otherwise, by or on behalf of Disclosing Party to Receiving Party, unless otherwise excluded below.
B. Confidential Information does not include information that (1) is already, or becomes, available to the public other than as a result of unauthorized disclosure by Receiving Party or any of its Associates (as defined below), (2) is, or was previously, received by Receiving Party or one of its Associates on a non-confidential basis from a third party under no obligation to maintain the confidentiality of such information, (3) is already known by Receiving Party or one of its Associates prior to the disclosure of the same to Receiving Party or one of its Associates by Disclosing Party and not subject to any confidentiality obligation, or (d) was independently developed by Receiving Party or one of its Associates without use of or reference to the Confidential Information.
C. Receiving Party (1) will use the Confidential Information only to perform its obligations and/or exercise its rights under this Agreement and (2) will maintain the confidentiality of such Confidential Information with at least the same degree of care that it uses to protect its own confidential information, but no less than a reasonable degree of care under the circumstances. Receiving Party may disclose any portion of the Confidential Information to any individual or entity: (a) as directed by Disclosing Party or as contemplated by the Services and (b) to the following persons (each, an “Associate”) but only to the extent each Associate (A) needs to know such Confidential Information for purposes of Receiving Party’s performing its obligations and/or exercising its rights under this Agreement, (B) has been informed of the confidential nature of the Confidential Information, and (C) is subject to confidentiality obligations to Receiving Party which are materially equivalent to those in this Section 8:
  • (i) employees, officers, and directors of Receiving Party;
  • (ii) Receiving Party’s Affiliates and the employees, officers, and directors of such Affiliates; or
  • (iii) any professional consultant, subcontractor, third-party provider or agent retained or used by Receiving Party or its Affiliate(s) involved in performance of this Agreement or any legal or business advisor engaged to advise Receiving Party or its Affiliates in relation to its/their business.
  •  
Receiving Party will be liable for breach by any of its Associates of the confidentiality obligations and use restrictions in this Section 8.

D. In the event of any legal action or demand for Confidential Information made to Receiving Party under applicable law or regulation, if Receiving Party is, in the reasonable opinion of Receiving Party’s legal counsel, required to disclose any Confidential Information, Receiving Party may disclose such Confidential Information without liability hereunder; provided, however, that Receiving Party (1) to the extent Receiving Party’s legal counsel deems permissible, gives Disclosing Party notice of the Confidential Information to be so disclosed as far in advance of its disclosure as is practicable, (2) furnishes only that portion of the Confidential Information that is requested and, in the opinion of Receiving Party’s legal counsel, required, and (3) uses all reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information. Notwithstanding anything otherwise set forth in this Agreement, Marketwired and its Affiliates may disclose Confidential Information: (i) to any government agency with regulatory or oversight jurisdiction over one or more of Marketwired or its Affiliates; or (ii) in the course of fulfilling any of the regulatory responsibilities of Marketwired or its Affiliates, including responsibilities over members and associated persons under the Securities Exchange Act of 1934, as amended, or other applicable law or regulation.
E. The confidentiality obligations and use restrictions in this Section 8 shall survive the termination or expiration of this Agreement for three (3) years, except with respect to trade secrets and Marketwired’s information security policies and procedures, in relation to which such confidentiality obligations and use restrictions survive indefinitely. If requested in writing by Disclosing Party, Receiving Party shall delete Confidential Information it receives pursuant to this Agreement, on termination of the Agreement, except that Receiving Party may retain Confidential Information (1) if and to the extent required under applicable law and/or document retention policies adopted in accordance with such law and/or (2) in Receiving Party’s automated electronic archiving or data back-up procedures from which it is not reasonably practicable to delete Confidential Information; provided, however, that the confidentiality obligations and use restrictions in this Section 8 shall continue to apply to such Confidential Information and/or copies so retained.

 

9. TERM AND TERMINATION

A. Unless earlier terminated as provided herein, the Agreement shall be for a period of 1 year as of the Effective Date or for as long as Marketwired is performing services pursuant to an Order Form, whichever is later (the “Initial Term”). Unless terminated as described in Section 9.B, upon expiration of the Initial Term, the Agreement and the related Schedules will renew automatically for subsequent 1-year renewal terms (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless otherwise specified on a particular Order Form or unless either Party notifies the other Party of its intention to not renew the Agreement or an Order Form, at least 90 days prior to the end of the Term. The Agreement or any Order Form may be terminated by either Party if the other Party materially defaults with respect to a material obligation under the Agreement or any Order Form and does not remedy that default within 30 days after receiving written notice of the default. Notwithstanding the foregoing, in cases where the default pertains to Client’s failure to pay any invoiced Fees or Taxes when due, Marketwired shall be entitled to terminate the Agreement or any Order Form if Client does not remedy that default within 10 days after receiving written notice of the default.
B. The Agreement or any Order Form may also be terminated by Marketwired immediately upon Client’s bankruptcy (voluntary or involuntary), insolvency or assignment for the benefit of its creditors, or the appointment of a receiver for all or a substantial part of Client’s assets. Upon termination of the Agreement, (i) Client shall promptly pay all Fees payable to Marketwired in respect of Services performed through the date of termination; and (ii) each Party shall return or destroy, at the direction of the other Party, all Confidential Information of the other Party then in its possession.
C. Upon termination of the Agreement or an Order Form in accordance with this Section 9, Client’s and Authorized Users’ right to use and access the Services immediately ceases. Upon termination or expiration, Marketwired has no obligation to maintain any Client information or to forward any Client information to Client, any Authorized User or any third party.
D. Marketwired may, by providing Client with as much notice as is reasonably practicable, cancel a Service, in whole or in part, or modify the terms on which it is provided, if all or part of such Service (a) depends on an agreement between Marketwired, or one of its Affiliates, and a third-party provider and that third-party agreement is modified or terminated during the Term of the applicable Order Form, (b) becomes illegal or contrary to any rule, regulation, guideline or request of any regulatory authority having jurisdiction over Marketwired’ ability to provide the Service, including any sanctions limitations affecting Client’s ability to receive, or Marketwired’ ability to provide, any Service(s) under this Agreement or to extend credit or collect Fees for such Services, and/or (c) is used by Client in violation of Marketwired’s repeat copyright infringer policy (as described in Section 5). In addition, Marketwired may change the platform from which it delivers the Services, as long as (a) the platform supports the functionality of the Services outlined in the Order Form; and (b) Marketwired provides Client with sufficient time to onboard to the new platform but no later than sixty (60) days after notification from Marketwired.
E. Marketwired may, by providing Client with six (6) months' notice, cancel a Service, in whole or in part.
F. If a Service is terminated by Marketwired pursuant to Section 9.D or 9.E, or by Customer pursuant to Section 11.F, Marketwired’s sole liability will be to refund Customer any pre-paid recurring Fees relating to the cancelled Service for the period following the termination date. If Marketwired terminates any Service Order or this Agreement due to Customer’s breach, Customer will pay any unpaid Fees and applicable additional charges covering the remainder of the term for the effected Services. In no event will termination relieve Customer of its obligation to pay any Fees or additional charges payable for the period prior to the effective date of termination.

 

10. GOVERNING LAW AND JURISDICTION

A. If the Client billing address referenced on the cover page of the Agreement is located in the United States:
  • (a) The Agreement will be governed by the laws of the State of New York, excluding its rules regarding conflicts of law; and
  • (b) Any claim, dispute, controversy or other matter in question with regard to this Agreement shall be submitted to the American Arbitration Association (“AAA”) and shall exclusively be subject to final binding arbitration in accordance with the Commercial Arbitration Rules and Regulations of the AAA (“Rules”). The arbitral tribunal shall be composed of a sole arbitrator. The arbitrator shall be selected in accordance with the Rules and the arbitration shall be conducted in New York, NY in the English language. The arbitrator shall not be empowered to award punitive damages. Each party hereby waives the right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The prevailing party will be entitled to recover from the non-prevailing party all reasonable attorneys’ fees. This Agreement will be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of laws rules. Notwithstanding the foregoing, either party may bring an action for injunctive relief (in addition to any other remedies available to it in law or equity) in any court of competent jurisdiction in the event of a breach or anticipated breach of Section 3 (Confidential Information) or of any other provision hereof that would be reasonably likely to cause such party immediate harm and/or for which money damages would be inadequate. Pursuant to Article 6 of the United Nations Convention on Contracts for the International Sale of Goods (“Convention”), the parties agree that the Convention shall not apply to this Agreement. Regardless of anything else in this Agreement or this Section 10.A.(b), no party, individual, or entity covered by the provisions of this Section 10.A.(b) will be allowed to participate in a class action in court or in class-wide arbitration, whether as a class representative, class member, or otherwise, or act as a private attorney general, in connection with any arbitration or court proceeding involving this Agreement or any claim, dispute, controversy, or other matter in question, arising out of, or relating to, this Agreement, or to the breach hereof. In addition, any arbitration or court proceeding involving this Agreement or any claim, dispute, controversy, or other matter in question arising out of, or relating to this Agreement, may not be joined or consolidated with any other arbitration or court proceeding involving a different agreement or different parties. The arbitrators have no power or authority to conduct class-wide, consolidated, or private attorney general arbitration. The validity and effect of this class action and consolidation waiver may be determined only by a court and not by an arbitrator. If a determination is made in a proceeding involving the parties that this class action and consolidation waiver is invalid or unenforceable, only this sentence of this arbitration provision will remain in force and the remainder of this Section 10.A.(b) shall be null and void, provided that the determination concerning the class action and consolidation waiver shall be subject to appeal.

B. If the Client billing address referenced on the cover page of the Agreement is located in the United Kingdom:
  • (a) The Agreement will be governed by the laws of England and Wales, excluding its rules regarding conflicts of law; and
  • (b) Venue for any dispute hereunder shall be a court of competent jurisdiction located in London, England, and the parties irrevocably submit to the exclusive jurisdiction of such courts.

C. If the Client billing address referenced on the cover page of the Agreement is located in Canada or in a region other than those set out in 10.A and 10.B above:
  • (a) The Agreement will be governed by the laws of the Province of Ontario, excluding its rules regarding conflicts of law; and
  • (b) Venue for any dispute hereunder shall be a court of competent jurisdiction located in the City of Toronto, in the Province of Ontario and the parties irrevocably submit to the exclusive jurisdiction of such courts.

 

11. GENERAL PROVISIONS

A. This Agreement constitutes the entire agreement between the Parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. This Agreement will supersede any prior communication services agreement or other Marketwired agreement entered into with Client and will apply to any Order Forms entered into by Client both before (if such Order Form is still in effect) and after the Effective Date. This Agreement shall not be modified except by a writing signed by Marketwired and Client and in furtherance of such principle, any additional or conflicting terms contained in communications from one party to the other hereafter, whether in the form of acknowledgements, order confirmations, invoices or otherwise, shall be inapplicable unless specifically agreed to in writing by the recipient party. Headings in this Agreement are for convenience only and do not affect interpretation of the Agreement.
1.1. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; or (iii) the second business day after sending by confirmed facsimile. The address for notice for the Client shall be the Client Address shown on the cover page unless Client provides a separate address for notices; for Marketwired: Marketwire LP, 25 York Street, Suite 900, Toronto, ON, Canada M5J 2V5, Attention: Legal Department, Phone: 416-362-0885. Client shall also send a copy of all legal notices to the following address: Office of General Counsel, Nasdaq, Inc., 805 King Farm Blvd, Rockville MD, 20850, USA, Attention: Contracts Group (GCS).
B. Except as expressly provided herein, neither party may assign or transfer this Agreement (including by operation of law), or any of the rights or obligations, to a third party without the prior written consent of the other party, such consent not to be unreasonably withheld, condition or delayed. Notwithstanding the foregoing, either Party shall be entitled to assign or transfer (including by operation of law) any rights or obligations, in whole or in part, to any affiliate or in connection within its reorganization, the sale of a division, product or service of Marketwired or any other business transaction of a similar nature, in each case, without the prior written consent of the other Party. . Except as expressly provided herein, this Agreement is for the sole benefit of the parties to this Agreement and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
C. If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, such provision shall be modified to the extent necessary to make it valid, legal and enforceable whilst preserving the intent of the Parties.
D. The provisions of this Agreement, which by their nature or express terms would survive termination or expiration of this Agreement, shall survive any termination or expiration, including without limitation Sections 4 - 8 and 10 of this Schedule A.
E. Any party hereto will be excused from performance for any period of time that the party is prevented from performing its obligations hereunder as a result of an act of God, war, earthquake, epidemic, terrorism, threat of terrorism, civil disobedience, court order, industrial dispute, technical failure, communications failure, unavailability of the Internet, weather, flood, fire or explosion, natural or local emergencies, or other cause beyond the party’s reasonable control.
F. All references to “Client” in this Agreement shall include all affiliates, subsidiaries and/or the parent company of the legal entity executing this Agreement, to the extent that such other entities are receiving Services pursuant to this Agreement. Any breach, directly or indirectly, of the terms of the Agreement, including any schedule, by a Client affiliate receiving Services pursuant to this Agreement, shall be deemed to be a breach by Client.
G. The Parties agree to accept facsimile, scanned, electronic, or copied signatures as original signatures for the purposes of executing the Agreement (including any Order Form or Schedule). The Parties further agree to accept copied, scanned, electronic, or printed fully executed versions of the Agreement (including any Order Form or Schedule) as if they were originals.

ADDITIONAL SERVICE-SPECIFIC TERMS AND CONDITIONS

 

If Client is purchasing Mediahub Services and/or Impress Services, the following terms and conditions specific to such Service(s) will apply in addition to the provisions of Sections 1 through 13 of these Terms of Service,

 

12. ADDITIONAL MEDIAHUB TERMS AND CONDITIONS

A. Marketwired shall make Marketwired’s proprietary global media database (the “Mediahub Services”) available to Client and Client’s Authorized Users, including storage related thereto. Marketwired grants Client and its Authorized Users a non-exclusive, non-transferable license to access the Mediahub Services on Client’s behalf, in either instance, solely for Client’s internal business purpose in connection with media contact management and news release distribution. In addition, Client and Client’s Authorized Users are granted a non-exclusive, non-transferable license to use the data stored on the specific database(s) Client and/or Client’s Authorized User have selected for use with the Mediahub Services, subject to the limitations contained herein. All rights not expressly granted by Marketwired to Client are retained by Marketwired.
B. The information retrieved from the database(s) made available on the Mediahub Service: (i) will be used solely by Authorized Users for Client’s business use and will not be transferred, sold or otherwise re-distributed or disseminated in any manner; (ii) will not be retained in computer memory or in a database except where permitted herein; (iii) will not be stored, accessed, distributed or otherwise used by Client or a ny of Client’s Authorized Users in any manner upon expiration or termination of the applicable Order Form ordering Mediahub Services. This obligation shall survive expiration or termination of these Terms of Service.
C. Marketwired shall use commercially reasonable efforts to: (i) maintain the security and integrity of the Mediahub Services and Client Ma terials; (ii) provide basic support to Authorized Users, at no additional charge, as set out in Section 12D; and (iii) make the Mediahub Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Marketwired shall give at least 8 hours’ notice via the Mediahub Services and which Marketwired shall schedule to the extent reasonably practicable during the weekend hours from 8:00 p.m. ET Friday to 8:00 a.m. ET Monday); or (b) an outage caused by a force majeure event as described in Section 11.F of these Terms of Service.
D. From time to time, Marketwired will advise Client of Marketwired’s Mediahub support policies. Marketwired reserves the right to change or discontinue Marketwired’s support policies or the Mediahub Services at any time. Marketwired will not be liable to Client, any of Client’s Authorized Users or any third party should Marketwired exercise Marketwired’s right to change or discontinue the Mediahub Services or Marketwired’s support policies, except for a pro rata refund of any prepaid Fees in the event t hat Marketwired terminates the Mediahub Services without cause. Marketwired will however, use reasonable efforts to advise Client of any material changes as soon as practicable.
E. CLIENT’S SOLE REMEDY FOR ANY DISSATISFACTION WITH THE MATERIALS MADE AVAILABLE THROUGH THE MEDIAHUB SERVICES IS TO STOP USING SAID MATERIALS AND/OR THE MEDIAHUB SERVICES.
F. In addition to the termination rights set out in these Terms of Service, Marketwired may, in Marketwired’s sole discretion, terminate or suspend Client ac cess to all or part of the Mediahub Services for any reason, including, without limitation, breach or assignment of this Section 12 or breach of applicable law. Termination shall not relieve Client of Client’s obligation to pay any Fees accrued or payable to Marketwired prior to the effective date of termination. Upon termination of the Mediahub Services, Client and Client Authorized Users will erase all information retrieved from the databases made available on the Mediahub Services from all computer systems, media storage and databases and will retain no further copies thereof. Client’s obligation to pay accrued Fees and to erase stored information in accordance with the foregoing shall survive termination of this Agreement.

 

13. ADDITIONAL IMPRESS SERVICES TERMS AND CONDITIONS

Impress Services” means the web hosting services provided to Client through the Easy Suite 2.0 platform and for greater clarity does not include any other communications Services that Marketwired may provide you from time to time pursuant to this Agreement. “Server” means the computer server equipment made available to Client in connection with the provision of the Impress Services. “Web Site” means the area on the Server allocated by Marketwired to Client for Client use as a site on the Internet.
A. Marketwired makes no representation and gives no warranty as to the accuracy or quality of information received by any person via the Se rver nor shall Marketwired have any liability for any loss or damage to any data stored on the Server. Client shall effect and maintain adequate insurance coverage in respect of any loss or damage to data stored on the Server. Client represents, undertakes and warrants to Marketwired that Client will use the Web Site al located to Client only for lawful purposes. In particular, Client represents, warrants and undertakes to Marketwired that Client will not use the Server or the Impress Services in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will Client authorize or permit any other person to do so. Client may not post, link to or transmit:
  • (i) any material which is unlawful, threatening, abusive, malicious, defamatory, obscene, pornographic, blasphemous, profane or otherwise objectionable as determined by Marketwired;
  • (ii) any material containing Malicious Code or other hostile computer program;
  • (iii) any material which constitutes, or encourages the commission of, a criminal offense or which infringes the Intellectual Property Rights of any third party; and
  • (iv) bulk email (i.e. spam) whether opt-in or otherwise from Marketwired’s network. Nor may Client promote a site hosted on Marketwired’s network using bulk email. Client may not employ programs which consume excessive system resources, including but not limited to processor cycles and memory. Additional fees and charges may apply if Client usage surpasses the allotted storage space set out in the applicable Order Form.
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B. Marketwired reserves the right to remove any material which Marketwired deems inappropriate from Client Web Site without notice. If Client purchases Impress Services that include the ability to make changes to the Web Site design, templates or master pages, Client is responsible for all such changes.
C. Client shall keep secure any identification, password and other confidential information relating to Client’s account and shall notify Marketwired promptly of any known or suspected unauthorized use of Client’s account or breach of security, including loss, theft or unauthorized disclosure of Client’s password or other security information.
D. Client shall observe the procedures which Marketwired may from time to time proscribe and shall not make use of the Server in a manner which is detrimental to Marketwired’s other customers. Client shall ensure that all mail is sent in accordance with applicable legislation (including data protection and anti- spam legislation) and in a secure manner. Any access to other networks connected to Marketwired must comply with the rules appropriate for those other networks. While Marketwired will make reasonable efforts to ensure the integrity and security of the Server, Marketwired do not guarantee that the Server will be free from unauthorized users or hackers and Marketwired shall be under no liability for non-receipt or misrouting of email or for any other failure of email.
E. Marketwired shall make reasonable best efforts to make the Server and the Impress Services available at all times but Marketwired shall not, in any event, be liable for interruptions of the Impress Services or downtime of the Server. Marketwired shall have the right to suspend the Impress Services at any time and for any reason, generally without notice.
F. The Impress Services provided to Client hereunder and Client’s account with Marketwired cannot be transferred or used by anyone other than Client. If Client’s account is found to have been transferred to a third party, or shows other activity in breach of this clause, Marketwired shall have the right to cancel the account and terminate the Impress Services and/or this Agreement immediately.
G. All charges payable for the Impress Services shall be in accordance with the applicable Order Form and shall be due and payable in advance of the provision of the Impress Services. Payment is due each anniversary month, quarter or year following the date the Impress Services were ordered pursuant to an Order Form until a closure notice is given. Without prejudice to Marketwired’s other rights and remedies under this Agreement, if any sum payable is not paid on or before the Due Date, Marketwired shall be entitled forthwith to suspend the provision of Impress Services to Client. On termination of these Terms of Service or suspension of the Impress Services, Marketwired shall be entitled immediately to block Client’s Web Site and to remove all data located thereon.
H. In the event any third party brings any action, arbitration, or other legal proceeding against Marketwired, Marketwired’s officers, directors, shareholders, agents, employees or other of Marketwired’s representatives (collectively hereinafter referred to as “the Indemnified Parties”), Client shall indemnify, defend, and hold harmless the Indemnified Parties from and against any and all claims, actions, suits, proceedings, liabilities, obligations, losses and damages, amounts paid in settlement, interest, costs and expenses (including reasonable attorneys' fees, court costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (collectively, “Losses”) incurred or suffered by any Indemnified Party to the extent that the Losses arise by reason of, or relate to, this Agreement or any breach of any of Client’s representations, warranties or covenants contained in this Agreement.

 

Last Updated: May 25, 2016