Terms of Service Agreement: Canada

 

1. DEFINITIONS

“Marketwired” means Marketwire L.P.  “Client” means the party utilizing Marketwired’s services.  “Agreement” means this Terms of Service Agreement.  “Content” means all information and materials submitted by Client to Marketwired.  “Service” or “Services” means any and all services provided to Client by Marketwired.  “Partner” or “Partners” means a third party that has a joint venture, marketing or similar relationship with Marketwired; a third party who broadcasts, displays or distributes the Content with the permission of Marketwired; and any third party who otherwise uses the Content with Marketwired's permission.

 

2. PAYMENT TERMS

Clients must pay for Services by credit card at the time the Content is submitted or, with approved credit, may be invoiced. Unless otherwise specified, all invoices of Marketwired are due upon receipt. In addition to the amounts due, Marketwired may charge interest on overdue amounts at the lesser of 18% per annum or the maximum rate permitted by law, as well as any costs of collection, including reasonable legal fees and costs.  Marketwired may, at its sole election, suspend performance of any further Services until such time as all payments due are paid.

 

3. REPRESENTATIONS, WARRANTIES AND COVENANTS

Client is solely responsible for the accuracy and authenticity of the Content 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 has the right and is authorized to submit the Content to Marketwired for distribution, broadcasting and/or filing; that the Content is 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 Content complies with all applicable laws and regulations; that the Content will not violate or infringe upon any copyright, trademark, or service mark rights, any other property rights, privacy rights, non-solicitation rights, intellectual property rights, confidentiality rights or other proprietary or contractual rights of any person or entity; that the Content does not contain any information which is libelous, defames or slanders any person or entity, which violates the intellectual property or confidentiality rights of 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 these Terms of Service or in the materials on Marketwired’s web site, “Marketwired.com”.

 

4. INDEMNIFICATION AND LIMITATION OF LIABILITY

In the event any third party brings any action, arbitration, or other legal proceeding (collectively, "legal proceeding") against Marketwired, its officers, directors, shareholders, agents, employees or other representatives of Marketwired, or against any Partner (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 representation, warranty or covenant of Client contained in this Agreement, or the Services provided to Client.

Neither Marketwired, its affiliates nor Partners shall be liable in any way for indirect, incidental, consequential, special or exemplary damages, punitive damages or penalties (even if Marketwired has been advised of the possibility of such damages or penalties), arising out of this Agreement, including but not limited to, loss of revenue, change in share price, loss of anticipated profits or lost business. This limitation of liability applies to any damages or penalties, including without limitation those caused by any failure of performance, error, omission, interruption, delay in operation or transmission, whether for breach of contract, tortious conduct, acts or omissions, negligence, or under any other claim or cause of action.


ANY LIABILITY OF MARKETWIRED, ITS AFFILIATES AND PARTNERS IN CONNECTION WITH, OR FOR PRODUCTS AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, SHALL BE STRICTLY LIMITED TO THE APPLICABLE AMOUNT (IF ANY) ACTUALLY PAID BY OR ON BEHALF OF CLIENT TO MARKETWIRED.

 

5. LICENSE

Client hereby grants Marketwired a non-exclusive, royalty-free, sub-licensable, irrevocable, transferable and assignable license to store, display, reproduce, distribute and, if appropriate, translate the Content submitted to Marketwired.  Client also grants Marketwired the right to mention Client’s name in Marketwired’s marketing materials, unless Client requests in writing that Marketwired refrain from such mentions. 

All intellectual property rights in, and ownership of, all materials provided by Client and any materials developed by Marketwired in connection with its performance of the Services shall be and shall remain the exclusive property of Client. Marketwired may use such materials solely for the purpose of performing the Service.

 

6. POLICIES

Marketwired maintains a set of policies (see “Client Use Policies” attached) governing the allowable usage of its Services.  Client agrees to adhere to the Policies, as amended from time to time, as a necessary condition to using the Services.

 

7. PRICES

Prices for Marketwired's Services are as described in the Marketwired Service Agreement attached.

 

8. NO WARRANTIES BY MARKETWIRED

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, MARKETWIRED MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO ITS PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR SUITABILITY FOR ANY SPECIFIC PURPOSE.

 

9. CONFIDENTIAL INFORMATION

Marketwired shall use all commercially reasonable efforts to maintain the confidentiality of, and shall not use for purposes unrelated to this Agreement any confidential information or material relating to Client that comes into the possession of Marketwired in connection with this Agreement. The foregoing shall not apply to information in the public domain or which has been previously obtained by Marketwired from a third party without breach of any obligation of confidentiality.

 

10. FORCE MAJEURE

Marketwired shall not be liable for any delay or non-performance arising from any cause out of its reasonable control, including, without limitation, acts of God, government acts, war, riots, terrorism, civil commotion, industrial disputes, technical failure, communications failure, general availability of the internet, weather, flood, fire or explosion, and natural or local emergencies.

 

11. ENTIRE AGREEMENT, SEVERABILITY, SUCCESSORS AND ASSIGNS

This Agreement, together with the Policies and a sales contract or other pricing agreement (if any, and including any pricing schedule attached hereto) between Client and Marketwired, constitute the entire agreement and replaces and supersedes any and all prior written and oral understandings, whether express or implied and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, but except as otherwise provided in this Section 13, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assignable or transferable by either party without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld, and any such unauthorized assignment or transfer shall be void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets or stock. If any term, provision or portion of a term or provision of this Agreement is invalid, illegal, overbroad or incapable of being enforced by any rule of law or public policy, all other terms, provisions, and portions of terms and provisions of this Agreement shall nevertheless remain in full force.

 

12. JURISDICTION

Any lawsuit filed by either party to enforce or construe any right granted under this Agreement or to assert any claim arising from the Services provided by Marketwired to Client shall be governed and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.  Each party to this Agreement hereby irrevocably attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario. In the event of any litigation to enforce any provision of the Agreement, the prevailing party will be entitled to recover from the other party its costs and fees, including reasonable legal fees.


 

CLIENT USE POLICIES

 

1. General

  • 1.1. Policies. These Policies supplement the Marketwired Terms of Service and are incorporated as an integral part therein. In the event of a conflict between the Terms of Service and these Policies, the Terms of Service shall govern.
  • 1.2. Account Authentication and Usage. Marketwired will not activate accounts utilizing a free email service as their primary email address for the account (e.g. Yahoo, Hotmail, Excite, Lycos, etc.). Marketwired will independently verify the information submitted on the Marketwired registration application, including company address, phone number(s) and email to ensure that Clients have provided valid account information. For security purposes, Marketwired may require that the Client provide additional documentation to facilitate account authentication.
  • 1.3. Users. Clients may set up their Marketwired accounts with Primary Users and/or Secondary Users. Primary Users are able to add and delete other users on the same account, while Secondary Users may not. It is incumbent on Primary Users to exercise good judgment in deciding who to add as additional users on their account. It is also the responsibility of Primary Users to remove other users who should no longer have access to their account (e.g. former employees). All Users will be required to accept the Terms of Use upon initial registration and login.
  • 1.4. Press releases, SEDAR and EDGAR filings must be uploaded by authorized users via Marketwired's secure web site. Users may not send their documents via email.
  • 1.5. Edit Rights. Marketwired reserves the right to edit Client Materials, if or as necessary, in order to make corrections to the Client Materials (e.g. misspellings) or to ensure that the Client Materials adhere to Marketwired's Policies, provided, however, that Marketwired will not make any substantive edits without first obtaining Client's consent. Press releases must be provided to Marketwired entirely in English with no grammatical or spelling errors. Marketwired's editorial staff review all press releases before distribution; however, Client remains responsible for the Client Materials submitted to Marketwired for distribution, including any errors.
  • 1.6. Unsuitable Client Materials. Marketwired may reject any Client Materials, or require changes to them, if Marketwired determines, in its sole discretion, that the Client Materials are unsuitable. Unsuitable Client Materials ("Unsuitable Client Materials") may include, but are not limited to, material which contains sexually explicit materials, promotes violence or illegal activities or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or violates the intellectual property rights of any person or entity. In addition, Marketwired will reject any Client Materials that promote stock picks, streaming video sites, online pharmaceuticals, or online gambling.
  • 1.7. Changes/Repush Requests. If a Client asks Marketwired to make a material change to a release that has already been distributed, Marketwired will require the change to be issued as a correction or repush, as appropriate, to all distribution channels which were sent the original release. Marketwired reserves the right, in its sole discretion, to determine whether the requested change is material or immaterial.

 

2. PRESS RELEASE DISTRIBUTION SPECIFIC POLICIES

  • 2.1 Contact Information. All press release Client Materials must contain a contact person or company name and phone number or email indicating the appropriate source of the Client Materials. The source must be someone who is authorized to send releases on behalf of the company in question. The source lends legitimacy to the Client Materials by clearly denoting who is responsible for the Client Materials.
  • 2.2 Attribution. All releases must contain attribution by identifying the news source in the headline. If the release is being distributed through an agency or other company on behalf of a Client, the news source will be the Client name, and the agent should identify how it is connected to the news source, or Client.
  • 2.3 Newsworthy. The press release must be newsworthy, and the news announcement must be clearly stated in the headline.
  • 2.4 Ticker Symbols. All ticker symbols included in any Client Materials for distribution must be for companies that have a direct role or participation in the news being announced (i.e. no "ticker spam"). Even if a ticker symbol is for a company that has a direct role or participation in the news, Marketwired may require removal of a ticker symbol if it cannot be verified that the Client has permission from the company whose ticker symbol is being used. Client may not include ticker symbols from Client's competitors or from any other third parties unless Client provides written permission to Marketwired in advance of submission of the release. In no case may more than four (4) ticker symbols be used in a given release.
  • 2.5 Lawsuits. Releases relating to lawsuits must be newsworthy. To qualify as "newsworthy", the lawsuit must actually have been filed. A Client may have to provide documentation of the filing or direct Marketwired to such documentation. Marketwired will not distribute repetitive instances of essentially the same release. At its sole discretion, Marketwired will only distribute more than one release on the same lawsuit if there has been a meaningful development that is deemed newsworthy. In addition, Client may only mention one lawsuit per release. It is strongly recommended that the Client use the name of the company (ies) involved in the litigation in the headline.
  • 2.6 Distribution Time. Marketwired will make every effort to ensure that releases are distributed according to the release times requested by Clients. Under certain circumstances, specifically for releases submitted in foreign languages and for releases that contain numerous tables, Clients should be aware that formatting can take longer than normal. If these releases are sent in without adequate lead time, then there may be delays while the release is being processed.
  • 2.7 Word Counts. For purposes of determining the word count of a release for pricing, the document word count will be calculated after the document has been formatted, including, if necessary, translation, and all tables and other add-ons have been inserted.
  • 2.8 Release Verification. Clients will be required to confirm a randomized security code before any release will be queued for distribution. For our protection as well as that of our Clients, no release will be distributed without first meeting our security standards.
  • 2.9 Bulk Releases. Marketwired reserves the right to refuse to perform bulk volume press release distribution during a particular time period on the same day. In addition, Marketwired will not distribute releases which contain the same headline and/or are from the same source company within the same day or within a reasonable period of days after the initial distribution of the release, if it appears, in Marketwired's discretion, that the subsequent press releases appear to be part of a bulk or volume distribution. Marketwired reserves the right to impose a maximum number of releases distributed by a Client in a given week or month if the releases in questions appear to be part of a bulk of volume distribution.
  • 2.10 Corrections. Marketwired will charge Client a processing fee for each release that needs to be re-distributed as a result of material or non-material changes to the content of the release. Additional charges may apply if the re-distributed release requires translation and/or international retransmission of the corrected release.

 

3. SEDAR AND/OR EDGAR FILING SPECIFIC POLICIES

  • 3.1. Filing Dates. Marketwired will make all practicable efforts to honor filing dates requested by the Client. However, EDGAR will only take filings up until 5:30pm E.S.T for filings marked that day. Similarly, SEDAR will only take filings up to 11:00pm Eastern Time Monday - Friday for filings marked that day. If large filings are submitted for processing and approval near the filing deadline, Marketwired may not be able to file for the requested day.
  • 3.2. Premium Charges. Any filing that is uploaded on the Marketwired site within 6 hours of the requested filing deadline (which is 5:30pm Eastern Time for that day), will be charged a premium of 3 times the normal per page fee ($45 in total per page).
  • 3.3. SEDAR Database. The Client acknowledges that when Marketwired files a Client's document on SEDAR, neither Marketwired nor Client will acquire any proprietary interest in the SEDAR database; however subject to the foregoing, nothing herein shall restrict any other rights Client may have to use, independent of the SEDAR system, any document which was electronically filed by Marketwired on behalf of Client using the SEDAR filing services. Client acknowledges and consents that the Canadian Securities Administrators and their licensees may reproduce and distribute the content in the SEDAR database, in whole or in part, and that they may license the use, reproduction and distribution of such content, in whole or in part, to third parties, whether on a commercial or non-commercial basis, including any such content that has been, or will be, filed or submitted by Marketwired on behalf of Client through SEDAR.

 

4. WEBCASTING SPECIFIC POLICIES

  • 4.1. Ordering and Producing Events. The Client takes full responsibility for providing the information necessary for scheduling, producing and running the webcasting event ("Event"). The Client will use best efforts to estimate the size of the event at time of scheduling.
  • 4.2. Running the Events. The Client will handle all aspects of running the Event. This includes using Questions and Answer functionality, polling and the control of slides if they are involved.
  • 4.3. Late Booking Fees. All events should be booked as far in advance as possible, with the guideline being one to two weeks at a minimum. For events that are booked very close to the event "live" timing, the following additional fees will be charged:
    • 4.3.1. Audio conference. Fee will be $300 if scheduled and confirmed less than 24 hours prior to the event start time.
    • 4.3.2. Video conference. Fee will be $750 if scheduled and confirmed less than 72 hours prior to the event start time.
  • 4.4.Cancellation and Rescheduling Fees. Should an event be scheduled by Client and agreed upon by Marketwired, and Client subsequently elects to cancel and/or postpone Marketwired's
    Services, Client shall pay Marketwired the following fees, as applicable:
    • 4.4.1. "Live" Streaming of audio "Conference Call" Event. In the event Client cancels, with written notice, Marketwired's "live" stream of any conference call event after 4:00 p.m., Eastern Time, on the business day immediately prior to the scheduled event date, Client shall pay a cancellation fee equal to $300. If Client does not advise Marketwired, with written notice, of its cancellation of any such conference call event prior to the scheduled time of the event, Client shall pay Marketwired all fees relating to such event as would otherwise be payable hereunder in lieu of, and not in addition to, any other cancellation fee or postponement fee payable hereunder.
    • 4.4.2. Slide Show Client Materials. In the event Client cancels, with written notice, Marketwired's stream of any Slide Show Client Materials, Client shall pay Marketwired a $100 cancellation fee per slide show. If the slide show is cancelled after 4:00 p.m., Eastern Time on the business day immediately prior, this fee shall be $200.
    • 4.4.3. "Live" Streaming of Videoconference Event. In the event Client cancels, with written notice, Marketwired's "live" stream of any videoconference event after 4:00 p.m., Eastern Time, on the business day immediately prior to the scheduled event date, Client shall pay Marketwired a cancellation fee of $750. If Client does not advise Marketwired, with written notice, of its cancellation of any such videoconference event prior to the scheduled time of the event, Client shall pay Marketwired all fees relating to such event as would otherwise be payable hereunder in lieu of, and not in addition to, any other cancellation fee or postponement fee payable hereunder.
    • 4.4.4. Rescheduling. Client shall pay Marketwired a rescheduling fee of $200 if Client provides Marketwired with written notice that it has elected to reschedule Marketwired's "live" stream of any audio or videoconference event at any time within twenty-four (24) hours before the originally schedule time of the event. Rescheduling outside of 24 hours will not be subject to any additional charges.
  • 4.5. Ownership. The content of each event is owned exclusively by the Client.