Terms of Service Agreement: Canada
“Marketwire” means Marketwire L.P. “Client” means the party utilizing Marketwire’s services. “Agreement” means this Terms of Service Agreement. “Content” means all information and materials submitted by Client to Marketwire. “Service” or “Services” means any and all services provided to Client by Marketwire. “Partner” or “Partners” means a third party that has a joint venture, marketing or similar relationship with Marketwire; a third party who broadcasts, displays or distributes the Content with the permission of Marketwire; and any third party who otherwise uses the Content with Marketwire'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 Marketwire are due upon receipt. In addition to the amounts due, Marketwire 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. Marketwire 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 Marketwire. Marketwire reserves the right to reject copy when necessary in its judgment.
Client represents and warrants to Marketwire that it has the right and is authorized to submit the Content to Marketwire 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 Marketwire'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 Marketwire's web site, "Marketwire.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 Marketwire, its officers, directors, shareholders, agents, employees or other representatives of Marketwire, 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 Marketwire, its affiliates nor Partners shall be liable in any way for indirect, incidental, consequential, special or exemplary damages, punitive damages or penalties (even if Marketwire 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 MARKETWIRE, 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 MARKETWIRE.
Client hereby grants Marketwire 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 Marketwire. Client also grants Marketwire the right to mention Client's name in Marketwire's marketing materials, unless Client requests in writing that Marketwire refrain from such mentions.
All intellectual property rights in, and ownership of, all materials provided by Client and any materials developed by Marketwire in connection with its performance of the Services shall be and shall remain the exclusive property of Client. Marketwire may use such materials solely for the purpose of performing the Service.
Marketwire 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.
Prices for Marketwire's Services are as described in the Marketwire Service Agreement attached.
8. NO WARRANTIES BY MARKETWIRE
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, MARKETWIRE 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
Marketwire 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 Marketwire in connection with this Agreement. The foregoing shall not apply to information in the public domain or which has been previously obtained by Marketwire from a third party without breach of any obligation of confidentiality.
10. FORCE MAJEURE
Marketwire 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 Marketwire, 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.
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 Marketwire 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
1.1. Policies. These Policies supplement Marketwire's Terms of Service Agreement ("TOS Agreement").
1.2. Accuracy and Authenticity. Client is solely responsible for the accuracy and authenticity of the Content submitted by Client to Marketwire. Marketwire bears no responsibility for the accuracy and authenticity of the Content submitted by Client to Marketwire. Client represents and warrants to Marketwire that the Client has the right and is authorized to submit the Content to Marketwire for distribution, broadcasting and/or filing; and that the Client is not impersonating any person or entity or misrepresenting Client's affiliation with any person or entity. Client represents and warrants to Marketwire that the distribution, broadcasting and/or filing of the Content does not violate any state, federal or common law or foreign law equivalent, 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; Client represents and warrants to Marketwire 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, or is otherwise illegal under Canadian Provincial, Federal, or foreign laws.
1.3. Users. Clients may set up their Marketwire 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 whom 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).
1.4. Press releases and SEDAR AND/OR EDGAR filings. Must be submitted by authorized users.
1.5. Edit Rights. Marketwire reserves the right to edit Content, if or as necessary, in order to make corrections to the Content (e.g. misspellings) or to ensure that the Content adheres to Marketwire's Policies, provided, however, that Marketwire will not make any substantive edits without first obtaining Client's consent.
1.6. Unsuitable Content. Marketwire may reject any Client Content, or require changes to it, if Marketwire determines, in its sole discretion, that the Content is unsuitable. Unsuitable Content ("Unsuitable Content") may include, but is not limited to, that Content which contains sexually explicit materials, promotes violence or illegal activities or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or otherwise violates the intellectual property rights of any person or entity.
2. PRESS RELEASE DISTRIBUTION SPECIFIC POLICIES
2.1. Contact Information. All press release Content must contain a contact name and phone number indicating the appropriate source of the Content. The source must be someone who is authorized to send releases on behalf of the company in question. The source lends legitimacy to the Content by clearly denoting who is responsible for the Content.
2.2. Ticker Symbols. All ticker symbols included in any Content 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, Marketwire 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. In no case may more than four (4) ticker symbols be used in a given release.
2.3. Class Action Lawsuits. Class action releases 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 Marketwire to such documentation. Marketwire will not distribute repetitive instances of essentially the same release. At its sole discretion, Marketwire 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 of the release.
2.4. Investment Opinions. Investment Opinion releases must contain at the top of the release a "Note to Editors" warning indicating that the release is an Investment Opinion. The release also must have a disclaimer at the bottom of the release disclosing any financial relationship that may exist between the issuer of the release and the company whose stock is mentioned in the release.
2.5. Distribution Time. Marketwire will make every effort to ensure 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.
2.6. 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.
3. SEDAR AND/OR EDGAR FILING SPECIFIC POLICIES
3.1. Filing Dates. Marketwire 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 E.S.T. for filings marked that day. If large filings are submitted for processing and approval near the filing deadline, Marketwire may not be able to file for the requested day.
3.2. Premium Charges. Any filing that is uploaded on the Market Wire site within 6 hours of the requested filing deadline (which is5:30pm E.S.T. for that day), will be charged a premium of 3 times the normal per page fee ($45 in total per page).
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. Cancellation and Rescheduling Fees. Should an event be scheduled by Client and agreed upon by Marketwire, and Client subsequently elects to cancel and/or postpone Marketwire's Services, Client shall pay Marketwire the following Cancellation Fees or Postponement Fees, as applicable:
4.2.1. "Live" Streaming of audio "Conference Call" Event. In the event Client cancels, with written notice, Marketwire's "live" stream of any conference call event after 4:00 p.m. (Client's local timezone), 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 Marketwire, with written notice, of its cancellation of any such conference call event prior to the scheduled time of the event, Client shall pay Marketwire 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 hereunder.
4.2.2. Slide Show Content. In the event Client cancels, with written notice, Marketwire's stream of any Slide Show Content, Client shall pay Marketwire a $100 cancellation fee per slide show. If the slide show is cancelled after 4:00 p.m. (Client's local timezone), on the business day immediately prior, this charge shall be $200.
4.2.3. "Live" Streaming of Videoconference Event. In the event Client cancels, with written notice, Marketwire's "live" stream of any videoconference event after 4:00 p.m. (Client's local timezone), on the business day immediately prior to the scheduled event date, Client shall pay Marketwire a Cancellation Fee of $750. If Client does not advise Marketwire, with written notice, of its cancellation of any such videoconference event prior to the scheduled time of the event, Client shall pay Marketwire 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 hereunder.
4.2.4. Rescheduling. Client shall pay Marketwire a Rescheduling Fee of $200 if Client provides Marketwire with written notice that it has elected to reschedule Marketwire'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.