Media Plans Terms of Service

These terms of service (the “Terms”) govern the use of, and the subscription to, the Website, the Products and/or the Services (as defined hereunder) provided by Media Plans Inc. (“Media Plans”). By accessing the Website, the Products and/or the Services, or by the Parties signing or accepting the present agreement, you agree to the Terms which include Media Plans’s Privacy Policy, to the extent applicable, on behalf of yourself as a User and/or, as the case may be, on behalf of the organisation you represent (“Customer”), unless you have a superseding written agreement with Media Plans.

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1. Definitions and Interpretation

1.1 The following capitalized terms shall have the meaning ascribed to them below:

(i) “Active User” means a User who was invited to access and use the Products, who is registered to access and use the Products, and whose registration was not deactivated by Customer or by Media Plans under Customer’s instructions;

(ii) “Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with a Party. For the purposes of referring to any Affiliate hereunder, “control” (including the terms “controlling” and “under common control with”) shall mean: (i) the ownership of more than 50% of the equity or beneficial interest of such entity, or the right to vote for or appoint a majority of the board of directors, or other governing body, of such entity; or (ii) the power to directly or indirectly direct or cause the direction of the management and policies of such entity by any means whatsoever, whether through the ownership of voting securities, by contract, or otherwise;

(iii) “B2B Contact Data” means (i) contact details of Customer personnel which Media Plans uses to communicate with Customer in its provision of the Product and/or Services, or (ii) any other Customer contacts which Customer provides or makes available to Media Plans in connection with the Terms;

(iv) “Beta Services” means Media Plans services, products, or functionalities that may be made available to Customer to try at its option at no additional charge, which are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description, and which are still in testing phase and not fully developed or released to the public;

(v) “Customer Data” means any content, which may include Personal Information of Users, that Customer or Users submit or transfer to Media Plans in connection with their use of the Website, Products and/or Services;

(vi) “Customer Personal Information” means any Personal Information contained within Customer Data or otherwise submitted or transferred by Customer to Media Plans in connection with the Website, Products and/or the Services, excluding B2B Contact Data;

(vii) “Effective Date” means (i) for a User, the first date a User accessed the Website or the Products; or (ii) for a Customer, the last date both Parties signed the Terms or the date Customer accepted the Terms, as the case may be;

(viii) "Order Form” means the applicable order form, invoice, executed quote, or other written Media Plans-approved ordering document, such as a confirmation email from Media Plans, describing the Product Subscriptions purchased by Customer;

(ix) “Parties” means (i) Media Plans and Customer; or (ii) Media Plans and a User, as the case may be;

(x) “Personal Information” has the meaning set out in Privacy Laws whether such term is defined as “personal information”, “personal data,” or similar terms;

(xi) “Privacy Laws” means all applicable data protection and privacy legislation, regulations and guidance governing the protection of Personal Information and Sensitive Personal Information;

(xii) “Privacy Policy” means Media Plans Privacy Policy available at https://www.media-plans.com/privacy-policy;

(xiii) “Product” means each product offered by Media Plans, which Customer subscribed to, whether by subscription or free trial, as referenced in the Order Form;

(xiv) “Product Subscription” has the meaning set out in Section 8.1 (Term);
(xv) “Sensitive Personal Information” has the meaning set out in Privacy Laws whether such term is defined as “sensitive personal information”, “sensitive personal data”, or a similar term, and may include race, ethnicity, national origin, religious affiliation, sexual orientation or physical or mental disability;

(xvi) “Services” means support services or other services related to the Products provided by Media Plans to the Customer;

(xvii) “Term” has the meaning set out in Section 8.1 (Term);

(xviii) “Telemetric Data and Meta Data” means data related to how Users access and use the Website, the Services and the Products (including features and functions of the Website and the Products being used by Users, stack trace data and reports related thereto) collected by Media Plans for the purposes of improving the security and the functionality of the Website, Products and Services;
(xix) “Meta Data” refers to data that provides information about other data, including but not limited to usage statistics, analytical data, and other data derived from Customer’s or User’s interaction with the Website and Products, excluding personal data and content uploaded by the Customer or User.

(xx) “User” means (i) any individual who accesses the Website; or (ii) any individual to whom Customer provides access to the Products, the Services and/or the Beta Services, including any executives, account administrators, team managers, direct managers and other people in a managerial role, as well as employees, contractors, job applicants and other users invited by Customer; and

(xxi) “Website” means the public website available at https://Media Plans.com/ and any sister websites provided by Media Plans.

1.2 The term “including” is not limiting and means “including, without limitation”.

2. Access to, and Use of, the Website, Products and Services

2.1 Website. The Users may access and use the Website in accordance with the Terms. Media Plans may revise the content, features, and functions of the Website at any time without notice. Media Plans may at any time, temporarily or permanently, limit or suspend the access to the Website, at its sole discretion, including to perform upgrades and maintenance to the Website.

2.2 Products. During the Term, Media Plans grants to Customer, its Affiliates and their respective Users the right to access and use the Products, and any related Services, in accordance with the Terms and with the Product-Specified Terms, to the extent applicable.

2.3 Products and Services Revisions. Media Plans shall offer the Products and Services materially in accordance with the description on its Website and related documentation. Media Plans may revise the content, features and functions of the Products and Services at any time without notice. Media Plans will provide Customer with prior notice if there is a change to the Products resulting in overall material decrease in the purpose of the Products. If such material decrease occurs, and Customer is materially impacted in its use of the Products, Customer may terminate the Terms and/or the impacted Product Subscriptions in accordance with paragraph 8.2(ii) or Section 8.3 (Termination – Product Subscription), as applicable.

2.4 Temporary Suspension of the Products and/or Services. Media Plans may temporarily limit or suspend the availability of the Products and/or Services from time to time, at its discretion, including to perform upgrades to, and maintenance of, the Products. Customer may consult at any time Media Plans’s status page where reasonable notice is given ahead of scheduled maintenance which may affect the availability of the Products and/or Services.

2.5 Beta Services. From time to time, Media Plans may make available to Customer Beta Services for evaluation and testing purposes. Customer hereby acknowledges that Beta Services are provided “as is” and may not be suitable for production use. Beta Services are provided without any implied warranties of fitness for a particular purpose or merchantability, and without any warranty that they will be error-free or will operate without interruption. In the event that Customer chooses to use the Beta Services, Media Plans grants to Customer a non-exclusive, non-transferable, revocable, limited right to use the Beta Services, subject to Customer’s acceptance of any additional terms and conditions with respect to the Beta Services, where applicable. Except as specified otherwise in this Section 2.5, the terms and conditions in these Terms, including Section 2.6 (Unacceptable Use) and 2.9 (Unacceptable Conduct of Users), fully apply to the Beta Services. Media Plans reserves the right to terminate or modify the Beta Services at any time and without notice to the Customer. Customer understands and acknowledges that Customer will not, unless otherwise agreed to in writing, receive any payment, compensation or discount for participating in, or for providing any feedback, suggestions, comments, evaluations, or reports with regards to, the Beta Services. Customer agrees and acknowledges that, following termination of the Beta Services, Media Plans shall have no obligation to transfer Customer Data to any other Media Plans product or service, including with respect to any final release of the Beta Services. Media Plans does not offer any service level agreement with regards to the Beta Services. To the maximum extent permitted by applicable laws, Media Plans disclaims all obligations or liabilities with respect to the Beta Services including any support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, MEDIA PLAN’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF THE BETA SERVICES WILL BE $100.

2.6 Unacceptable Use. Customer and Users shall not, nor attempt to, nor permit third parties to: (i) share non-public features or content of the Website or the Products with any third party; (ii) copy, duplicate, reverse engineer, decompile, decode, decrypt, disassemble, record, alter, enhance, modify, merge, adapt, translate, create any derivative works or otherwise reproduce any part of the Website or the Products (for clarity purposes, Customer and Users shall not access the Website, the Products and/or the Services in order to build a product or service competing with the Products and/or Services or to build a product using ideas, features, functions or graphics similar to those of the Website, the Products and/or the Services); (iii) send any viruses, worms, time bombs, trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of the Website or the Products; or (v) use the Website or the Products in a manner that overburdens, or that threatens the integrity, performance or availability of the Website or of the Products. Furthermore, the Website or the Products shall not be used to collect, manage or process Sensitive Personal Information as well as any patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act or any similar health data protected under applicable laws and regulation. Media Plans ASSUMES NO LIABILITY THAT MAY RESULT FROM CUSTOMER’S OR USERS’ USE OF THE WEBSITE OR THE PRODUCTS TO COLLECT OR PROCESS SENSITIVE PERSONAL INFORMATION OR PROTECTED HEALTH INFORMATION. In particular, the categories of User attributes created by Customer’s account administrator shall not be created so that it would result in the input of Sensitive Personal Information. Customer is responsible to inform Users that Sensitive Personal Information should not be submitted in the Products. In the event that it suspects any breach of this Section, Media Plans may suspend Customer’s and Users’ access to the Website, the Products and/or the Services without advance notice, in addition to such other remedies as Media Plans may have under applicable laws. Media Plans ASSUMES NO LIABILITY FOR ANY UNACCEPTABLE USE OF THE WEBSITE, PRODUCTS AND/OR SERVICES.

2.7 Account Security and Access. Customer and Users shall take all reasonable steps to prevent unauthorized access to the Products, including by protecting their passwords and other login information. Customer is responsible for any activity occurring in its account (other than activity that Media Plans is directly responsible for and is not performed in accordance with Customer’s instructions), whether or not Customer authorized that activity. Customer or Users shall immediately notify Media Plans if it becomes aware of any unauthorized access to, or use of, its account.

2.8 Customer Systems. Customer is responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software that its Users use to access and use the Products. The Products may not work properly if Customer’s operating systems, Internet browsers and anti-virus software are not up to date.

2.9 Unacceptable Conduct of Users. To help ensure a safe and productive use of the Products, Users shall not, and Customer shall ensure that Users do not have inappropriate conduct including (i) impersonating any other person or entity; (ii) using the Products and/or Services to send spam or otherwise unsolicited messages in violation of applicable laws; or (iii) allowing the submission of any Customer Data, or using Customer Data in a way, that is illegal, harmful, threatening, abusive, violent, harassing, defamatory, libelous, vulgar, obscene, offensive, indecent, humiliating, hateful, unethical or otherwise objectionable. Customer and Users understand that by using the Products and/or Services, they may be exposed to Customer Data submitted by Users that is in breach of this Section 2.9, and under no circumstances will Media Plans be liable in any way for any such Customer Data. Media Plans shall have the right, at its sole discretion, to remove any Customer Data that violates the Terms, and to reveal the identity of a User to Customer or any authority if required by law to do so, if such User transfers Customer Data in violation of this Section 2.9. It is Customer’s responsibility to monitor and control all activity conducted by Users on the Products and/or Services. Media Plans is under no obligation to review how Users are using the Products or the Services. MEDIA PLANS ASSUMES NO LIABILITY FOR ANY UNACCEPTABLE CONDUCT OF USERS.

2.10 Indemnification by Customer. Customer shall defend, indemnify and hold harmless Media Plans and its officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against liabilities, damages and costs, including any interest accrued, and reasonable legal fees arising out of, or related to a third-party claim in connection with (i) the content or nature of Customer Data, including Customer Data in breach of Sections 2.6 (Unacceptable Use) or 2.9 (Unacceptable Conduct of Users); (ii) the breach of warranties in Section 2.11 (Compliance with Laws) and Section 4.1 (Customer Data); or (iii) Customer’s or any User's alleged or actual use, misuse or inappropriate use of the Website, the Products and/or the Services, including in violation of Sections 2.6 (Unacceptable Use) or 2.9 (Unacceptable Conduct of Users). Media Plans must provide Customer with prompt written notice of any such claim, suit or proceeding, and allow Customer the right to assume the exclusive defense and control and cooperate with any reasonable requests in assisting Customer’s defense and settlement of such matter. Customer shall not settle or compromise any such claim, suit or proceeding without Media Plans’s prior written consent, such consent not to be unreasonably withheld, when (a) it results in liability or admission of any liability by Media Plans; (b) the settlement does not include a full release of liability for Media Plans; or (c) the settlement includes terms other than a full release of liability for Media Plans and the payment of money.

2.11 Compliance with Laws. When providing or using the Products and the Services, the Parties shall comply with all applicable laws, including Privacy Laws and applicable labour laws, anti-bribery, anti-money laundering and anti-corruption laws. Customer is also responsible to obtain any consent required by applicable laws from its Users or to have a legitimate interest to allow Customer to use the Products and the Services and to allow Media Plans to provide the Products and the Services in accordance with the Terms.

2.12 Compliance by Users. Customer must take reasonable steps to ensure that its Users comply with all applicable laws, including Privacy Laws, when using or accessing the Products, and that such Users are governed by, and comply with, the Terms and the Product-Specific Terms, as applicable.

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3. Service Fees of the Products and Billing

3.1 Fees. In consideration for the Products and Services, Customer shall pay Media Plans the fees applicable to each Product Subscription for the selected subscription plan, as specified on the Website or in an Order Form, which may be on a monthly, annual or multi-year term (the “Fees”). The Fees may be determined in accordance with the number of Active Users or otherwise as specified on the Website or in an Order Form. Fees applicable to a monthly Product Subscription shall be invoiced monthly and are payable on the invoice date. Fees applicable to an annual Product Subscription shall be invoiced annually at the beginning of the annual period and are payable within thirty (30) days of the invoice date. Service Fees applicable to a multi-year Product Subscription shall be invoiced at the beginning of the applicable Product Subscription period and are payable within thirty (30) days of the invoice date.

3.2 Renewal. For monthly Product Subscription, Customer’s subscription will be automatically renewed on the first day following the expiration of a subscription month (the “Renewal Date”) for an additional subscription period of one month, unless Customer cancels its Product Subscription before the Renewal Date. For annual or multi-year Product Subscription, Customer’s Product Subscription will be automatically renewed on the first day following the expiration of the Term (the “Renewal Date”) for the same subscription term as the then-expiring subscription term, unless Customer cancels its Product Subscription no later than thirty (30) days before the Renewal Date. For annual or multi-year Product Subscription, Media Plans shall send Customer a prior notice of renewal at least 60 days before the Renewal Date, and thus if Customer no longer wishes to renew its Product Subscription, Customer is responsible for timely canceling it through its account in the Products or with a Media Plans customer representative. Unless otherwise agreed in writing by the Parties, the Fees applicable to any such renewal shall be Media Plans’s then-current standard subscription fees for the applicable Product Subscription.

3.3 Change in the Number of Active Users. If Customer wishes to increase the number of Active Users authorized to access and use the Products, Customer may do so in the following manner:

(i) Annual or Multi-Year Product Subscription. Customer on an annual or multi-year Product Subscription may at any time increase the number of authorized Active Users through the “billing” section of the Products. Any incremental Fees associated with such increase of authorised Active Users shall be prorated over the remaining period of Customer’s then-current Product Subscription term, charged to Customer account and become due and payable upon implementation of such increase of authorised Active Users.
(ii) Monthly Product Subscription. Customer on a monthly Product Subscription may at any time increase the number of authorized Active Users, without having to pay any incremental Service Fees associated with such increase of authorised Active Users for the remaining period of the then-current Product Subscription term.

3.4 Adjustment of the Number of Active Users upon Renewal. Upon renewal of a subscription term, the Fees shall be determined in the following manner:

(i) Annual or Multi-Year Product Subscription. Unless otherwise instructed by Customer before the Renewal Date, for each renewal of an annual or multi-year Product Subscription, the number of authorized paid Active Users to the renewed Product Subscription shall be the higher of (i) authorized paid Active Users in the then-current Product Subscription term; and (ii) actual number of Users using the Products in the then-current Product Subscription term. Should the number of Active Users exceed the number of authorized Active Users during an annual period, Media Plans shall be entitled to the payment of any incremental Fees associated with such additional Active Users prorated over the remainder of the Product Subscription term. In such a case, Media Plans shall notify Customer prior to invoicing the applicable Fees.
(ii) Monthly Product Subscription. The number of authorized paid Users to the renewed Product Subscription shall be the number of authorized Users in the last day of the then-current expiring Product Subscription term.

3.5 No Refunds. Except as expressly otherwise provided herein, payments are non-refundable and there are no refunds or credits for partially used periods or number of Users.

3.6 Overdue Fees. Media Plans shall have the right to suspend the Product Subscriptions and the Services without notice should the Customer’s invoiced Fees become overdue. The Product Subscriptions and Services shall be restored within one (1) business day of payment.

3.7 Free trial or Freemium Subscription. If Customer registers for a free trial or a freemium subscription for one or more Products and/or Services, Media Plans will make such Products and/or Services available to Customer on a trial or freemium basis free of charge until the earlier of (i) the end of the free trial period applicable to Customer; (ii) the start date of any paid Product Subscription purchased by Customer for such Product and/or Services; or (iii) termination of the trial or the freemium subscription at any time by Media Plans or Customer, in their sole discretion.

3.8 Third Party Payment Processor. Media Plans reserves the right to use a third-party PCI-DSS compliant payment processor for all billing and receipt of payments hereunder. Customer hereby authorizes Media Plans to share payment information, which may include B2B Contact Data, to such third-party payment processor, including for the purpose of updating Customer’s payment method.

3.9 Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). Customer is responsible for paying Taxes except those assessable against Media Plans based on its income. Media Plans will invoice Customer for such Taxes if Media Plans has a legal obligation to do so, and Customer shall pay such Taxes if so invoiced.

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4. Data

4.1 Customer Data. Customer represents and warrants that it owns or has obtained all necessary rights, title and interest, and obtained all necessary consents to transfer Customer Data in relation with the Terms and the Product-Specific Terms, as applicable, and that Customer Data doesn’t infringe any third-party intellectual property right and is used in accordance with any labor laws applicable to Customer. Customer or the User grants Media Plans a worldwide, non-exclusive, and royalty-free right to access, use, process, copy, distribute, perform, export and display Customer Data, only to the extent permitted by law and as reasonably necessary (i) to provide, maintain and improve the Products and Services; (ii) to prevent or address service, security, support or technical issues; or (iii) to create anonymized and aggregated data non-related to a specific Customer, which does not constitute Customer Data and is owned by Media Plans, including for use as benchmarking and marketing purposes in accordance with the Privacy Policy or as otherwise expressly permitted in writing by Customer or as required by law. This right continues with respect to anonymized data and any residual backup copies of Customer Data made in the ordinary course of business even after termination of the Terms and the Product-Specific Terms, to the extent applicable.

4.2 Protection of Customer Data. Media Plans shall store and process Customer Data in accordance with the Privacy Policy. Media Plans has implemented technical, organizational and administrative systems, policies and procedures as well as other measures detailed in the Privacy Policy to help ensure the security, integrity, availability and confidentiality of Customer Data, and to mitigate the risk of unauthorized access to or use of Customer Data. Nonetheless, hosting data online involves risks of unauthorized disclosure, loss or exposure and, in accessing and using the Products, Customer assumes such risks, except for gross negligence or unlawful conduct of Media Plans.

4.3 Disclosure of Customer Data. Unless it receives Customer’s prior written consent, Media Plans shall not grant any third-party access to Customer Data, except to Media Plans’s third-party service providers in connection with the provision, the performance or the improvement of the Products and Services. Before sharing any Customer Data with any of its third-party service providers, Media Plans will ensure that such third-party maintains data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access providing a level of protection equivalent or greater than that afforded by these Terms.

4.4 Telemetric Data and Meta Data. To the extent permitted by law, Telemetric Data and Meta Data, and the anonymized or aggregated data derived from such Telemetric Data and Meta Data does not constitute Customer Data and is owned by Media Plans.

4.5 Privacy Policy. When using the Products, Services and/or when accessing the Website, including by subscribing to Media Plans’s newsletter, by downloading content from the Website or by using the Website chatbot, Customer and/or User may transfer to Media Plans, and Media Plans may collect, access or process, Personal Information, including, when applicable, Customer Data containing Personal Information. Media Plans shall collect, access, or process any Personal Information in accordance with the Privacy Policy. The Privacy Policy is hereby incorporated by reference and are part of the Terms.

4.6 Confidential Information. “Confidential Information” means any non-public, confidential, or sensitive information, including Customer Data, disclosed by a Party or on its behalf (the “Disclosing Party”) to the other Party (the “Receiving Party”), and excludes any information that is:

(i) publicly available or later becomes publicly available other than through a breach of the Terms and the Product-Specific Terms;
(ii) as evidenced by documentary and competent evidence: (a) known to the Receiving Party or its employees, agents or representatives prior to such disclosure or (b) without using the Confidential Information, is independently developed by the Receiving Party or its employees, agents or representatives subsequent to such disclosure; or
(iii) as evidenced by documentary and competent evidence, subsequently lawfully obtained by the Receiving Party or its employees, agents or representatives from a third party without obligations of confidentiality, provided that such source is not, to the knowledge of the Receiving Party, in breach of its obligations of non-disclosure towards the Disclosing Party.

4.7 Use or Disclosure of Confidential Information. The Receiving Party shall only use or disclose Confidential Information to exercise its rights and fulfill its responsibilities under the Terms and the Product-Specific Terms, to the extent applicable. The Receiving Party shall exercise the same degree of care and protection with respect to the Confidential Information that it exercises with respect to its own confidential information and in any event, at least diligent and prudent care. The Receiving Party shall not directly or indirectly disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information, except that Media Plans may disclose Confidential Information to its third party service providers in connection with the performance or the improvement of the Products and Services, in which case Media Plans will ensure that the third party maintains reasonable data practices for maintaining the confidentiality and security of the Confidential Information and preventing unauthorized access. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The Receiving Party shall give the Disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with the Disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure, at the Disclosing Party’s expense. The provisions of this Section shall supersede any prior non-disclosure agreement by and between the Parties, and such agreement shall have no further force or effect.

4.8 Return of Confidential Information. Following the termination or expiration of the Terms and/or the Product-Specific Terms (as applicable), and upon request of a party, the other party shall return all Confidential Information to the other; provided, however, that each party may retain copies of the other party’s Confidential Information solely for archival, audit, disaster recovery, legal and/or regulatory purposes provided further, that the retaining party will not use the retained Confidential Information for any other purpose.

4.9 Survival of Confidentiality Obligations. Subject to applicable laws, the foregoing obligations of each party with respect to Confidential Information shall survive any termination or expiration of the Terms and the Product-Specific Terms (as applicable) and shall continue for a period of three (3) years following the termination or expiration of the Term unless applicable laws require the Confidential Information to be retained for a longer period.

5. Media Plans's Warranties and Disclaimers

5.1 Warranty. Media Plans represents and warrants that: (i) the Website, the Products and/or the Services do not infringe upon any third-party intellectual property rights or constitute a misuse or misappropriation of a trade secret; (ii) contingent upon Customer’s proper use, Customer’s use of the Website, Products and/or Services do not infringe on any third party intellectual property rights; and (iii) it has the right to grant access to, and use of, the Website, the Products and/or the Services to Customer.

5.2 Warranty Disclaimers. MEDIA PLANS DOES NOT WARRANT THAT THE WEBSITE, THE PRODUCTS AND/OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, DEFECT FREE, ERROR FREE, VIRUS FREE OR FREE OF OTHER HARMFUL COMPONENTS OR WILL NOT BE SUBJECT TO UNAUTHORIZED USE OR DISCLOSURE. CUSTOMER ACCEPTS THAT THE WEBSITE, THE PRODUCTS AND/OR THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL DEFECTS AND ERRORS, IF ANY. MEDIA PLANS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. INFORMATION CREATED BY THIRD PARTIES AND THAT MAY BE ACCESSED ON THE WEBSITE OR THE PRODUCTS ARE NOT ENDORSED BY MEDIA PLANS, AND MAY HAVE NOT BEEN REVIEWED BY MEDIA PLANS, AND REMAINS THE RESPONSIBILITY OF THE THIRD PARTY. UNLESS OTHERWISE REQUIRED UNDER THESE GENERAL TERMS, Media Plans DOES NOT REVIEW, MODERATE OR ALTER THE PERSONAL INFORMATION SHARED BY CUSTOMER AND/OR USERS, WHETHER SUCH PERSONAL INFORMATION IS SHARED DIRECTLY THROUGH THE WEBSITE, PRODUCTS, SERVICES AND/OR BETA SERVICES, OR THROUGH THEIR INTEGRATION WITH THIRD-PARTY SOFTWARE OR DATABASES. Media Plans DOES NOT CONTROL CUSTOMER DATA AND DOES NOT GUARANTEE THE ACCURACY, INTEGRITY OR QUALITY OF SUCH CUSTOMER DATA AND OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE OR THE PRODUCTS. CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF CUSTOMER DATA AND ANY INFORMATION OBTAINED THROUGH THE USE OF THE WEBSITE OR THE PRODUCTS, AND FOR MAKING AND IMPLEMENTING DECISIONS BASED ON SUCH INFORMATION, AND DEALING WITH ANY RELATED CONSEQUENCES. MEDIA PLANS ASSUMES NO LIABILITY FOR ANY SUCH INFORMATION HANDLED BY CUSTOMER THROUGH THE WEBSITE OR THE PRODUCTS.

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6. Limitation of Liability

6.1 Dollar Cap. EXCEPT FOR FRAUD, PHYSICAL INJURY OR DEATH OR INTENTIONAL OR GROSS FAULT OF EITHER PARTY, FOR THE INDEMNIFICATION FOR INTELLECTUAL PROPERTY INFRINGEMENT REFERRED TO IN SECTION 7.2 (INDEMNIFICATION) OR FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS REFERRED TO IN SECTION 2.10 (INDEMNIFICATION BY CUSTOMER OR THE USER), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY OF PROVEN DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE GENERAL TERMS AND/OR PRODUCT-SPECIFIC TERMS EXCEED THE TOTAL AMOUNT PAID AND PAYABLE, IF ANY, BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY, OR ONE HUNDRED DOLLARS IN CASE OF A USER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THIS LIMIT. PARTIES UNDERSTAND THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SERVICE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF MEDIA PLANS WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. MEDIA PLANS HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE THE RIGHTS TO ACCESS AND USE THE WEBSITE, THE PRODUCTS AND THE SERVICES.

6.2 Exclusion. IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, GOODWILL, BUSINESS OR DATA OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE GENERAL TERMS, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT FOR INTENTIONAL OR GROSS FAULT OF THE PARTY. THE FOREGOING EXCLUSIONS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

6.3 Consultant. Should Customer hire a consultant to perform services relating to the implementation and the use of the Products, Media Plans shall have no responsibility in relation to such services.

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7. Intellectual Property and Feedback

7.1 No Rights granted. Media Plans retains all right, title, and interest in and to the Website and the Products and the content Customer accesses through the Website and the Products, other than Customer Data. The Terms and the Product-Specific Terms (as applicable) do not grant Customer any intellectual property rights in or to the Website or the Products, or in Media Plans’s logos and other trademarks. Customer or Users shall not remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Website or the Products.

7.2 Indemnification. Media Plans will defend, indemnify, and hold harmless Customer and its officers, directors, shareholders, parents, subsidiaries, agents, successors and assigns against any Third Party Claim Losses, provided however that Media Plans will have no liability to the extent the Third Party Claim Losses (as defined hereunder) against Customer arises from (i) the content or nature of Customer Data; (ii) any non-Media Plans product; or (iii) any modification, combination or development of the Products that is not performed by Media Plans. Customer must provide Media Plans with prompt written notice of any Third Party Claim Indemnifiable Proceeding (as defined hereunder) and allow Media Plans the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting Media Plans defense and settlement of such matter. Media Plans shall not settle or compromise any Third Party Claim Indemnifiable Proceeding that results in liability or admission of any liability by the Customer without Customer’s prior written consent, such consent not to be unreasonably withheld. Media Plans shall not settle or compromise any Third Party Claim Indemnifiable Proceeding without Customer’s prior written consent, such consent not to be unreasonably withheld, when (a) it results in liability or admission of any liability by Customer; or (b) the settlement does not include a full release of liability for the indemnified parties. For the purpose of this Section, the following definitions apply:

(i) “Third Party Claim Indemnifiable Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding brought against Customer arising out of a third-party claim that the software used in the Products infringes any intellectual property rights of such third party; and
(ii) “Third Party Claim Losses” means any amount finally awarded in, or paid in settlement of, any Third Party Claim Indemnifiable Proceeding.

7.3 Feedback. Any feedback or suggestions from Customer or Users sent to, or shared with, Media Plans to improve the Products or the Website may be implemented by Media Plans in any manner, including future enhancements and modifications to the Website or the Products. In such case, Customer and Users grant Media Plans an unlimited, worldwide, irrevocable, perpetual, sublicensable, transferable, fully paid-up, royalty-free right to use any such feedback or suggestion for any purpose without any obligation or compensation to Customer, Users or any third party. In addition, other than Confidential Information of the Customer, Media Plans shall be free to reuse all general knowledge, experience, know-how, works and technologies, including ideas, concepts, processes and techniques, related to, or acquired during, the provision of the Website, the Products and/or the Services.

7.4 Learnings and metadata. All learnings derived from customer data, including but not limited to industry benchmarks, anonymized attribution learnings, media averages, and metadata, shall remain the exclusive property of Media Plans. However, all Customer data, including any personal or enterprise-identifiable information, shall remain the sole property of the Customer.

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8. Term and Termination

8.1 Term. The Terms are effective as of the Effective Date, for a period (the “Term”) ending (i) for Customer, when all subscriptions to the Products, including all renewals of said Product Subscriptions, have expired after being cancelled pursuant to Section 3.2 (Renewal) or until they are terminated by any or both Parties in accordance with Sections 8.2 (Termination – Terms) or 8.3 (Termination – Product Subscription), as applicable; or (ii) for a User, when the User is no longer accessing the Website or the Products. For greater clarity, the Terms shall remain in force so long as at least one Product Subscription is active.

8.2 Termination - Terms. The Terms may be terminated:

(i) by the Parties at any time if the other Party materially breaches any of its obligations under the Terms or the Product-Specific Terms, to the extent applicable. If the material breach is curable, the Terms may only be terminated if such breach is not cured within 15 days after a Party provides notice of the breach to the other Party. For clarity purposes, any violation of Section 2.6 (Unacceptable Use) and 2.9 (Unacceptable Conduct of Users) by Customer shall be deemed a material breach of the Terms;
(ii) by Media Plans if Customer fails to make any payment of the Service Fees within 15 days after Media Plans provides notice that such amounts are overdue to Customer; or
(iii) by Media Plans for convenience, with at least a 30-day prior written notice for a monthly subscription, or with at least a 90-day prior written notice for an annual or multi-year subscription.

8.3 Termination - Product Subscription. The conditions applicable to the termination of the Terms under Section 8.2 (Termination – Terms) apply equally to the termination of a Product Subscription, with the necessary modifications.

8.4 Termination Fee. In the event Media Plans terminates a Product Subscription or the Terms for cause under paragraphs 8.2(i) or 8.2(ii) hereof prior to the expiry of the Term, and Customer has not prepaid the total Fees payable hereunder, Customer shall pay as liquidated damages a termination fee equal to the remaining Fees that have not yet been paid to Media Plans (the “Termination Fee”). The Parties stipulate that the Termination Fee is not a penalty, but rather a reasonable measure of damages, based on the parties’ expectation of the nature of the losses that may result from such termination.

8.5 No Refund in the Event of Termination. Section 3.5 (No Refunds) applies, regardless of the cause of termination. However, if Customer has terminated the Terms pursuant to paragraph 8.2(i) or a Product Subscription pursuant to Section 8.3 (Termination – Product Subscription), or if Media Plans has terminated the Terms pursuant to paragraph 8.2(iii) or a Product Subscription pursuant to Section 8.3 (Termination – Product Subscription), Media Plans shall refund prepaid Fees prorated for the remainder of the unused Term. WHERE QUEBEC LAW APPLIES, CUSTOMER HEREBY EXPRESSLY RENOUNCES TO THE APPLICATION OF ARTICLES 2125 TO 2129 OF THE CIVIL CODE OF QUEBEC.

8.6 Survival. Any rights and obligations of the Parties hereunder that by their nature are reasonably intended to survive termination or expiration of the Terms, shall survive termination or expiration of the Terms including Sections 2.6 (Unacceptable Use), 2.9 (Unacceptable Conduct of Users), 2.10 (Indemnification by Customer), 4.7 (Use or Disclosure of Confidential Information), 5.2 (Warranty Disclaimers), 6 (Limitation of Liability), 7 (Intellectual Property and Feedback), 8 (Term and Termination) and 9 (General) shall survive termination of the Terms.

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9. General

9.1 Publicity. Customer grants Media Plans the right to use Customer’s company name and logo as a reference for marketing or promotional purposes, including on its Website or blog and in other public or private communications with Media Plans’s existing or potential customers. If Customer wishes to limit such right at any time, it shall notify Media Plans at the following email: support@media-plans.com. Customer retains all right, title, and interest in and to such company name and logo.

9.2 Governing Law and Venue. The Terms shall be governed, construed and enforced solely in accordance with (i) the laws applicable in the Canadian province of Quebec if the Customer is located in Canada or (ii) the laws of the State of New York if the Customer is located outside of Canada, without reference to: (i) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (ii) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (iii) other international laws. Any litigation in any way relating to the Services or the Terms shall be brought and venued exclusively in (i) the judicial district of Montreal in the Canadian province of Quebec if the Customer is located in Canada or (ii) an appropriate federal or state court in New York, New York, USA if the Customer is located outside of Canada, and the Parties waive any objection that such venue is inconvenient or improper. Each Party waives any right to jury trial in connection with any action or litigation in any way arising out of, or related to, the Terms.

9.3 Specific Performance. Notwithstanding any other provision in the Terms, a non-breaching Party may, upon any breach of the Terms, immediately seek enforcement of the Terms by means of specific performance or injunction, without any requirement to post a bond or other security.

9.4 Force Majeure. Except as expressly provided otherwise in the Terms, Media Plans shall not be liable by reason of any failure or delay in the performance of its obligations on account of an unforeseeable and irresistible event, including external causes with the same characteristics, which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, act of God, war, terrorism and governmental action.

9.5 Entire Agreement. The Terms are the complete and exclusive statement of the Parties’ agreement relating to the subject matter hereof and supersedes all oral or written offers, understandings, representations, conditions, warranties, covenants and other communications between the Parties relating hereto, including, without limitation, any non-disclosure agreements relating to the subject matter hereof, any order documentation as well as any terms or documentation which is not explicitly referred to in these Terms.

9.6 Conflicts. In event of any conflict between the Terms and the Privacy Policy, the Privacy Policy will control with respect to its subject matter.

9.7 Notices. Media Plans may send notices pursuant to the Terms to Customer’s email contact points provided by Customer. Customer may send notices pursuant to the Terms to Media Plans at support@media-plans.com. Notices shall be deemed received twenty-four (24) hours after they are sent.

9.8 Assignment & Successors. The Terms shall be binding upon and inure to the benefit of the Parties’ respective successors and assigns. The Customer shall not assign or transfer the Terms or the Customer’s interests, rights, or obligations hereunder, and any purported assignment or transfer shall be null and void. Notwithstanding the foregoing, the Customer may assign or transfer the Terms and any rights granted thereunder to an Affiliate; provided that such Affiliate agrees in writing to be bound by the terms of the Terms.

9.9 Waiver. No waiver by either Party of any default in performance on the part of the other Party shall constitute a waiver of any subsequent breach or default by the defaulting Party.

9.10 Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of the Terms invalid or otherwise unenforceable in any respect. In the event that a provision of the Terms is held to be invalid or otherwise unenforceable, such provision shall be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Terms shall continue in full force and effect.

9.11 Technology Export. Customer shall not export any software provided by Media Plans or otherwise remove it from Canada or the United States except in compliance with all applicable Canadian and U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Website or the Products in or export such software to, a country subject to an embargo by Canada or the United States.

9.12 Consumer Protection Law. Media Plans is a marketing tool intended for use by businesses and organizations and not for consumer purposes. To the maximum extent permitted by law, consumer protection laws do not apply. 

9.13 Anti-Money Laundering, Anti-Bribery, and Anti-Modern Slavery Laws. The Parties agree to comply with all applicable (i) anti-money laundering laws and regulations; (ii) anti-bribery laws and regulations; and (iii) anti-modern slavery legislation. This includes, but is not limited to, (a) the Proceeds of Crime (Money Laundering) and Terrorist Financing Act (Canada), the Money Laundering Control Act (United States) and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (United Kingdom); (b) the Corruption of Foreign Public Officials Act (Canada), the Foreign Corrupt Practices Act (United States), and the Bribery Act 2010 (United Kingdom); and (c) the Modern Slavery Act 2015 (United Kingdom) and the Fighting Against Forced Labour and Child Labour in Supply Chains Act (Canada). The Parties acknowledge that these laws and regulations are subject to change and agree to promptly update their compliance programs to reflect any changes. The Parties further agree to reasonably cooperate with each other and with any regulatory authorities in connection with any investigation or inquiry related to anti-money laundering, anti-bribery and anti-modern slavery laws and regulations.

9.14 Inappropriate Conduct. The Customer, its Users and Media Plans recognize the right of employees to work in an environment free from harassment, including sexual harassment and discrimination. The Parties shall not, and they shall ensure that their respective employees, agents and representatives shall not, engage in any conduct that creates an intimidating, hostile or offensive work environment.

Where an allegation of inappropriate conduct, harassment or discrimination is received in connection to these Terms, the Parties agree to cooperate in order for the matter to be investigated on a priority basis.

A breach of this section shall be deemed a material breach of the Terms.

9.15 Relationship of the Parties. The Parties are independent contractors. The Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Each Party hereto represents and warrants that it has the authority to agree to the Terms on behalf of the organisation that it represents.

9.16 Amendments. Unless Customer has a superseding written agreement with Media Plans, Media Plans may amend the Terms from time to time on its Website as its business evolves. Any revisions to the Terms will become effective on the date Media Plans publishes the changes. Customer and Users can review the most current version of the Terms at any time by visiting this page at https://media-plans.com/terms-of-service/. If Customer or Users use the Products, Services or access the Website, as the case may be, after the effective date of any changes, that use or access will constitute the acceptance of the revised Terms, to the extent applicable.

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