TRFFK
A. Trader wishes to provide its “TRFFK” service, being a digital marketing solution which, among other things, manages Dealer’s pay-per-click search engine marketing, as further described herein to Dealer, on the terms and conditions set forth herein.
B. Dealer wishes to subscribe for TRFFK subject to the terms and conditions set forth herein.
THEREFORE, Trader and Dealer (each a “Party” and, collectively, the “Parties”) agree as follows:
ARTICLE 1
PROVISION OF TRFFK, BUDGET AND FEES
1.1 Trader will provide the TRFFK service to Dealer as follows:
(a) Dealer will establish and provide a monthly budget (the “Budget”) of, in aggregate, at least $1000 per month and $750 per month per channel (if more than one channel) for TRFFK that a Strategist (as defined below) will then allocate as part the provision of TRFFK.
(b) Any changes to Dealer’s Budget will be effective upon 5 business days’ notice, and until the effective date of such change, billing will remain at the previous month’s Budget.
(c) Notwithstanding any other term or condition set forth herein, Dealer acknowledges and agrees that Trader shall have the authority to, in providing TRFFK, exceed the Budget by up to five percent (5%) (the “Overage Amount”) and, if the Budget is so exceeded in a given month, Dealer shall be responsible for payment of the Overage Amount.
1.2 For Dealer to utilize TRFFK, it must at all times during the Term (defined below) of this Agreement purchase from Trader one or more product packages pursuant to which its vehicle inventory is listed on the Trader online marketplace (autoTRADER.ca/AutoHebdo.net).
1.3 On a monthly basis, in addition to the Budget, Dealer shall be required to pay of the following monthly service fees:
(a) a fee equal to thirty percent (30%) of the Budget, but not less than $150;
1.4 The Service Fee will be payable for a given month even if Dealer terminates the use of TRFFK during that month.
1.5 Dealer will be invoiced for the previous month’s Budget, the Overage Amount (if applicable) and the Service Fee within ten (10) days of the completion of such month. Dealer shall be required to pay each such invoice within thirty (30) days of receipt. Trader may suspend TRFFK and/or terminate this Agreement if payment is not received prior to the expiry of such thirty (30) day period.
1.6 The provision of TRFFK to Dealer will be managed by a strategist appointed by Trader (the “Strategist”), who will allocate the Budget and any Overage Amount in the Strategist’s sole discretion, among Search Engine Marketing (SEM), Display Advertising and/or Retargeting, unless the Strategist is advised of a specific allocation by Dealer (in any case the “Allocation”). For certainty, unless Dealer has requested a specific Allocation, the Strategist may, for any given month, allocate the entire Budget and any Overage Amount entirely to SEM, Display Advertising or Retargeting and may allocate no amount to SEM, Display Advertising or Marketing.
1.7 Dealer will be provided with the reports of the Allocation on a monthly basis which shall be delivered in a manner and at a time determined by Trader. In addition, Dealer will be provided with professional advice, marketing services through Advertising channels for new or used cars, performance reports by email, remarketing, and marketing strategies and performance evaluation reviews with experts.
1.8 Dealer may reduce their monthly media budget to $0, this change to Dealer’s Budget will be effective upon 5 business days’ notice, and until the effective date of such change, billing will remain at the previous monthly media Budget.
(a) While Dealer remains at a budget of $0 Dealer will continue to be charged each month as per the monthly service fee outlined in 1.3 above. For clarity, if the Dealer remains at a $0 budget for the entirety of a given month, Dealer will be charged for that month at the minimum monthly service fee of $150.
ARTICLE 2
DATA USE, LICENSE, OWNERSHIP
2.1 During the Term (defined below) of this Agreement, Trader shall be permitted to extract all data, including, without limitation, audience data and webpage URLs, from Dealer’s website or websites that Trader may reasonably require (as determined by Trader in its sole discretion) to provide TRFFK and to carry out Trader’s business (the “Data”). Trader covenants that it shall not directly use Dealer’s Data to the benefit of any other dealer in the provision of TRFFK to such other dealer. For clarity, Data extracted by Trader shall be used solely for the purposes set out within this Agreement and shall be securely destroyed from Trader's stored data warehouse up to 90 days from the termination or expiry of this Agreement. In connection therewith, Dealer hereby grants to Trader an irrevocable, worldwide, royalty-free, sublicenseable, and non-exclusive license to use, reproduce, adapt, modify, translate, publish, publicly perform, make available, publicly display and distribute the Data in order for Trader to provide TRFFK and for any other reasonable business purposes as determined by Trader in its sole discretion.
2.2 As between Dealer and Trader: (i) Trader retains all rights, title and interest in and to all intellectual property rights embodied in or associated with TRFFK; (ii) Trader shall be the owner of all content created by Trader and utilized in connection with the provision of advertisements through TRFFK and (iii) except as expressly set out in this Agreement, Trader and its suppliers retain all rights, title and interest in and to all intellectual property rights embodied in or associated with any Trader controlled software or any other intellectual property utilized, developed or modified in connection with the provision of TRFFK. There are no implied licenses under this Agreement, and any rights not expressly granted hereunder are expressly reserved. For certainty, all procedures, methods, systems, strategies, tools, equipment, facilities and other resources owned, licensed or leased by Trader and used or provided by Trader in connection with this Agreement shall remain the property of Trader and shall at all times be under the sole direction and control of Trader.
2.3 Notwithstanding anything herein to the contrary, Trader may use, diagnose and otherwise harness, in whole or in part, all Data and any other data derived from Dealer’s use of TRFFK for any purpose related to Trader’s business operations, on an aggregated and anonymized basis such that any use or disclosure of such aggregated and anonymized data does not permit a third party to associate any particular data with Dealer, any person within the Data derived from Dealer’s website or websites, or any other end user.
2.4 Dealer authorizes Trader: (i) to acquire (for greater clarity including without limitation, copying, crawling, scraping, and pinging) through automated and human means the URL of each of Dealer’s webpages; (ii) to integrate a script (GTM Tag) on the Dealer’s webpages allowing Trader to track performance; and (iii) to add, if applicable, Google Analytics to Dealer’s webpages.
2.5 Without limiting the generality of any of the foregoing, if at any time Dealer’s website ([insert name of website]) is hosted by a party other than Trader, Dealer expressly represents and confirms to Trader that it owns or has consent to use all intellectual property rights associated with all Uniform Resource Locator(s) (“URLs”) referenced on Dealer’s website and grants Trader permission to scrape/copy all URLs referenced on the Dealer’s website for the purposes of providing the TRFFK service (and in particular for the purpose of enabling redirection to Dealer’s website from third party websites for the purposes of advertising).
ARTICLE 3
TERM
3.1 This Agreement shall remain in force until terminated by Dealer or Trader in accordance with the terms hereof (the “Term”).
3.2 Either Party may terminate this Agreement for any reason on thirty (30) days written notice (the “Notice Period”) to the other Party. If this Agreement is terminated prior to, or during, the sixty (60) day period following the activation of TRFFK for use by Dealer (the “Initial Period”), Dealer shall be responsible for paying the Budget Amount and the Service Fee during the Initial Period and the Notice Period, if the Notice Period extends beyond the Initial Period. For certainty, Dealer shall be responsible to pay Budget Amount and Service Fee during the Notice Period whenever such period arises pursuant to this Section 3.2.
3.3 Either Party may terminate this Agreement: (i) if the other Party breaches or is in default of any material obligation under this Agreement which default is incapable of cure or which, being capable of cure, has not been cured within ten (10) days after receipt of notice of such default (or such additional cure period as the non-defaulting Party may authorize in its sole discretion); or (ii) immediately upon: (x) the admission by the other Party in writing of the inability to pay debts generally as they become due or the taking of any corporate action tantamount to such admission; (y) the other Party ceasing to do business as a going concern; or (z) the other Party making any assignment for the benefit of creditors.
ARTICLE 4
CONFIDENTIALITY
4.1 For purposes hereof, “Confidential Information” shall mean all information or material which is either: (i) marked “Confidential,” or other similar marking; or (ii) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. Notwithstanding the foregoing, Confidential Information shall not include information which: (A) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving Party; (B) was previously known to the receiving Party or rightly received by the receiving Party from a third party; or (C) is independently developed by the receiving party without reference to information derived from the other Party.
4.2 Each Party agrees to hold the other’s Confidential Information in strict confidence, both during and after the Term. The Parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the implementation of, and as specified in, this Agreement.
4.3 In the event any Confidential Information is required to be disclosed by a receiving Party under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction, or by a demand or information request from an executive or administrative agency or other governmental authority, the receiving Party requested or required to disclose such Confidential Information shall, unless prohibited by the terms of a subpoena, order, or demand, promptly notify the disclosing Party of the existence, terms and circumstances surrounding such demand or request, shall consult with the disclosing Party on the advisability of taking steps to resist or narrow such demand or request, and, if disclosure of such Confidential Information is required, shall exercise its reasonable best efforts to narrow the scope of disclosure and obtain an order or other reliable assurance that confidential treatment will be accorded to such Confidential Information. To the extent the receiving Party is prohibited from notifying the disclosing Party of a subpoena, order or demand, by the terms of same, the receiving Party shall exercise its reasonable efforts to narrow the scope of disclosure.
ARTICLE 5
LIMITATION OF LIABILITY AND INDEMNIFICATION
5.1 Without limitation to anything otherwise set out in this Agreement, Trader hereby agrees to defend, indemnify and hold harmless Dealer, its affiliates, and their respective officers, directors, agents and employees, from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of: (i) breach by Trader of any of its representations or obligations hereunder; and (ii) Trader’s gross negligence, willful misconduct or fraudulent actions.
5.2 Without limitation to anything otherwise set out in this Agreement, Dealer hereby agrees to defend, indemnify and hold harmless Trader, its affiliates, and their respective officers, directors, agents and employees, from any and all liabilities, losses, expenses, damages, and costs (including, without limitation, reasonable attorneys’ fees) that may at any time be incurred by any of them by reason of any third party claims, actions, suits or proceedings relating to or arising out of: (i) breach by Dealer of its representations or obligations hereunder; and (ii) Dealer’s gross negligence, willful misconduct or fraudulent actions.
5.3 Any claim for indemnification hereunder shall be subject to the following provisions: (i) each Party shall be given prompt written notice of the claim by the indemnified Party, provided that any delay in providing notice shall not relieve the indemnifying Party of its indemnity obligations under this Agreement unless, and only to the extent, the indemnifying Party was prejudiced by the delay; (ii) the indemnifying Party shall have the right to control the defense and all negotiations relative to the settlement of any such claim, provided that it diligently undertakes such defense and that no settlement admitting liability on the part of the indemnified party or limiting the indemnified Party’s rights hereunder may be made without the express written consent of the indemnified Party; and (iii) the indemnified Party shall reasonably cooperate with the indemnifying Party and its counsel at the indemnifying Party’s cost and expense.
5.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL DAMAGES, OR FOR ANY EXEMPLARY OR SPECIAL DAMAGES OF ANY KIND, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.5 Dealer covenants and agrees that it shall be solely responsible for, and shall in connection therewith indemnify Trader for, TRFFK services’ compliance with applicable law and/or any requirements imposed by Dealer’s applicable manufacturer and/or any other requirements at law or otherwise.
ARTICLE 6
GENERAL
6.1 Certain Rules of Interpretation
In this Agreement:
(a) Consent – Whenever a provision of this Agreement requires an approval or consent and the approval or consent is not delivered within the applicable time limit, then, unless otherwise specified, the Party whose consent or approval is required shall be conclusively deemed to have withheld its approval or consent.
(b) Currency – Unless otherwise specified, all references to money amounts are to the lawful currency of Canada.
(c) Governing Law – This Agreement is a contract made under and shall be governed by and construed in accordance with, the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario.
(d) Headings – Headings of Articles and Sections are inserted for convenience of reference only and do not affect the construction or interpretation of this Agreement.
(e) Including – Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”.
(f) No Strict Construction – The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
(g) Number and Gender – Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
(h) Severability – If, in any jurisdiction, any provision of this Agreement or its application to any Party or circumstance is restricted, prohibited or unenforceable, the provision shall, as to that jurisdiction, be ineffective only to the extent of the restriction, prohibition or unenforceability without invalidating the remaining provisions of this Agreement and without affecting the validity or enforceability of such provision in any other jurisdiction, or without affecting its application to other Parties or circumstances.
(i) Statutory References – A reference to a statute includes all regulations and rules made pursuant to the statute and, unless otherwise specified, the provisions of any statute, regulation or rule which amends, supplements or supersedes any such statute, regulation or rule.
(j) Time – Time is of the essence in the performance of the Parties’ respective obligations.
(k) Time Periods – Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done, shall be calculated by excluding the day on which the period commences and including the day on which the period ends and by extending the period to the next Business Day following if the last day of the period is not a Business Day.
6.2 Notices
Any notice, consent or approval required or permitted to be given in connection with this Agreement (in this Section referred to as a “Notice”) shall be in writing and shall be sufficiently given if delivered (whether in person, by courier service or other personal method of delivery), or if transmitted by facsimile or e-mail. Any Notice delivered or transmitted to a Party shall be deemed to have been given and received on the day it is delivered or transmitted, provided that it is delivered or transmitted on a business day prior to 5:00 p.m. local time in the place of delivery or receipt. If the Notice is delivered or transmitted after 5:00 p.m. local time or if the day is not a business day, then the Notice shall be deemed to have been given and received on the next business day.
6.3 Amendment
No amendment, supplement, modification or waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, is binding unless executed in writing by the Party to be bound.
6.4 Assignment
No Party may assign this Agreement or any of the benefits, rights or obligations under this Agreement without the prior written consent of the other Party.
6.5 Enurement
This Agreement enures to the benefit of and is binding upon the Parties and their respective successors (including any successor by reason of amalgamation of any Party) and permitted assigns.
6.6 Execution and Delivery
This Agreement may be executed by the Parties in counterparts and may be executed and delivered by facsimile and all the counterparts and facsimiles together constitute one and the same agreement.
6.7 Language
The Parties confirm that it is their wish that this Agreement, as well as any other documents relating to this Agreement, including notices, schedules and authorizations have been and shall be drawn up in the English language only. Les signataires confirment leur volonté que la présenteconvention, de même que tous les documents s’y rattachant, y compris tout avis, annexe et autorisation, soient rédigés en anglais seulement.