Advertising Terms and Conditions
1.1 These advertising terms and conditions (the “Terms”) constitute a binding agreement (the “Agreement”) between the Canadian Physiotherapy Association (including, without limitation, any of its divisions (collectively, “CPA”) and the person or entity contracting for the purchase of advertising or advertising-related services, whether as principal (“Advertiser”) or as agent (“Agency”).”
1.2 If Agency enters into this Agreement on behalf of Advertiser, Agency and Advertiser acknowledge that Agency is the duly appointed and authorized agent of Advertiser for all purposes related to this Agreement, and that Agency and Advertiser shall be jointly and severally liable and responsible for all obligations under this Agreement, including, without limitation, payment obligations.
1.3 Advertiser and Agency, if applicable, are individually and collectively referred to herein as “Purchaser”.
1.4 This Agreement is subject to the CPA policy on advertising found at https://physiotherapy.ca/sites/default/files/cpa_advertising_policy.pdf, as may be amended from time to time (“CPA Advertising Policy”), the terms of which are hereby incorporated by reference.
1.5 This Agreement applies to all advertising and advertising-related services (each, a “Service”) agreed to between CPA and Purchaser, including, without limitation, (a) insertion orders, in electronic messages, publications or print publications; (b) advertising in connection with sponsorship or other arrangements involving CPA events or programs, including conferences, seminars, courses, webinars, etc., including any content integration and/or production; and (c) digital advertising. Each contract between the parties in respect of a particular Services element, whether documented by means of insertion order or by some other means, is referred to herein as an “Order”, and the specific terms contained in each such Order are hereby incorporated into this Agreement by reference.
2.1 Subject to subsection 2.2, the following payment terms shall apply:
a. Purchaser shall pre-pay for its advertising purchase except with written approval from CPA or as otherwise set forth in an Order. Payments are due within 30 days of delivery of each applicable invoice. Unless otherwise specified in a particular Order, fees set out in each Order do not include taxes.
b. CPA reserves the right to change its advertising rates at any time.
c. Purchaser shall notify CPA in writing of any discrepancies in invoicing within 20 days of receipt of the invoice, failing which Purchaser shall be deemed to have approved the invoice.
d. If Purchaser disputes a portion of an invoice, Purchaser shall remit the undisputed portion of the invoice, and acceptance by CPA of such portion shall in no way be construed as an admission by CPA of the validity of Purchaser’s dispute.
e. CPA reserves the right to impose a late payment charge of 2% per month, calculated and compounded monthly on the delinquent amount (26.8% per year) from the date of first invoice until the date CPA receives such amount in full.
f. CPA reserves the right to charge a $30 administrative charge for returned or rejected payments including insufficient funds.
2.2 In the event that CPA determines, in its sole discretion, that the credit of either Agency or Advertiser is unsatisfactory, CPA shall have the right in its absolute discretion to change the payment terms.
2.4 CPA shall not be responsible for the payment of commissions to Agency (if any). Any references to an agency commission on invoices from CPA are discounts provided to Agency and shall not be construed as a commission payable by CPA to Agency in any manner.
2.5 Unless otherwise indicated on a particular Order, all dollar amounts shown hereunder and in any Order are stated and payable in Canadian dollars.
3. TERMINATION AND CANCELLATION
3.1 Either party may terminate this Agreement or any Order if the other party: (a) commits a material breach of any provision and fails to cure such breach within three (3) business days of receiving notice thereof; or (b) becomes the subject of any bankruptcy or insolvency proceeding.
3.2 CPA may terminate this Agreement or any Order if CPA, acting reasonably, believes that either Advertiser or Agency is unable to meet its financial obligations as they become due.
3.3 If CPA terminates this Agreement or any Order for any of the reasons set forth in subsections 3.1 and 3.2 of these Terms, CPA shall be entitled to recover as liquidated damages all out-of-pocket costs, including any non-cancellable production costs, as well as all amounts due and to become due under this Agreement or such Order, and such amounts shall be immediately due and payable.
3.4 Except as may be detailed in an Order,
a. in the case of digital advertising, no cancellation shall be required to be accepted by CPA without five (5) days advance notice to CPA of the cancellation; and
c. in the case of publishing advertising, no cancellations shall be accepted by CPA after the closing date for advertising space.
4. DISRUPTION, PRE-EMPTION AND SUBSTITUTION
4.1 CPA shall not be liable (directly or indirectly) for any damages, losses, costs or expenses suffered by Purchaser as a result of disruption, substitution, cancellation or pre-emption of any Service element, including, without limitation, an event or program, or interruption, postponement or inability or omission to publish, display or exhibit any Service element by reason of any event reasonably beyond the control of the parties (each, an “Event of Force Majeure”), including, without limitation: (a) technical or mechanical difficulties, public emergency or necessity, legal restriction, strike or labour action, terrorism, dispute with exhibit distributor or program supplier; (b) failure of any third party transmission; (c) laws, regulations, directions, orders or other requirements of any federal, provincial, municipal authority or any applicable regulatory bodies; (d) required modification to the advertising or other creative materials (as determined in the sole discretion of CPA) as a result of public interest or compliance with any law, by-law, directive or other restriction on CPA; or (e) if CPA is unable to obtain the approval rights of a third party where such third party is reasonably required to provide its approval (e.g. a third party producer or licensor) and/or in the event such third party maintains the right to revoke its approval and elects to revoke any such approval in its sole discretion.
4.2 If non-performance under this Agreement is due to any Event of Force Majeure, then (a) explicitly excepting any obligation to pay amounts due hereunder, neither party shall be liable to the other for any damages caused by such non-performance for so long as such Event of Force Majeure exists; (b) the terms of this Agreement shall remain effective; and (c) the terms of this Agreement shall be revised, mutatis mutandis. For certainty, any inability to perform services due to an Event of Force Majeure shall not be considered a material breach of this Agreement by CPA.
4.3 Purchaser acknowledges that CPA’s sole responsibility in the event of any Event of Force Majeure is as set out in Section 7.
4.4 Purchaser acknowledges that, unless otherwise stated in a particular Order, CPA shall not be required to exhibit Purchaser’s advertising during or with any particular content, or display any specific advertising in any particular order or at any specific time or placement. CPA may receive requests from Purchaser to the foregoing effect; however, adherence by CPA to any such request cannot be guaranteed. CPA’s inability or failure to comply with any such request shall not relieve Purchaser of the obligation to pay for the particular Service element. CPA may, in its sole discretion, reschedule, pre-empt or cancel any program, event or other content that it exhibits or produces without notice to Purchaser, but subject to any obligations that may flow to Purchaser as set out in a particular Order.
5. APPROVALS AND CREATIVE
5.1 Unless an Order requires CPA to produce certain elements, all Service materials shall be furnished by Purchaser, and all expenses connected with delivery thereof to CPA and further shipment from CPA, if directed by Purchaser, shall be at Purchaser’s expense.
5.2 Materials produced by CPA under any Order (collectively, the “CPA Material”) shall be the property of CPA, subject to Purchaser’s ownership of any materials containing claims, statements, or representations with regard to any identified or product(s) or service(s), (e.g. script, video, audio, copy) and Purchaser’s trade names, trademarks, logos, marks and other business identifiers (collectively, the “Purchaser Material”), as may be supplied by Purchaser to CPA for use in connection with a particular Order. Purchaser acknowledges and agrees that the ownership of the CPA Material remains with CPA, and Purchaser shall not use the CPA Material on any other platform, including on Purchaser’s own platforms, except if otherwise expressly permitted by an Order or with the written consent of a senior management team member of CPA. Notwithstanding the foregoing, Purchaser may purchase the CPA Material (if not co-branded with CPA trademarks or other intellectual property) by paying CPA an additional buy-out fee as mutually agreed.
5.3 Purchaser shall be solely responsible, at its own expense, for securing any and all necessary rights, clearances and other consents in connection with all aspects of the Purchaser Material.
5.4 Purchaser grants CPA a limited, non-exclusive, license to use, promote and otherwise exploit the Purchaser Material in accordance with this Agreement. Purchaser Material may, in CPA’s discretion, be exhibited or archived by CPA or by anyone authorized by CPA, in any form of media now or hereafter created.
5.5 Where required in respect of a particular Order, Purchaser shall deliver to CPA the Purchaser Material and written instructions and links (if any) in accordance with any deadlines, schedules and technical specifications of CPA. If the Purchaser Material is late, Purchaser shall still be responsible for the purchase pursuant to the applicable Order.
5.6 The form and content of all Service material and use of Purchaser Material must be approved and accepted by both CPA and Purchaser. Purchaser shall provide CPA with any comments and/or requested changes respecting such material in writing within three (3) business days of receipt of such material (or such other time period specified by CPA). If no requested changes are received within such time period, the Service material shall be deemed to have been approved by Purchaser. If requested changes are received within such time period, CPA shall make up to two (2) rounds of changes with respect to print advertising material and three (3) rounds of digital advertising material. Should additional rounds of changes be requested by Purchaser, additional fees may apply.
5.7 CPA shall be under no obligation to exploit any Purchaser Material or Service element, and CPA (or any third party producer, if applicable) may cancel all or part of any Service element in its sole discretion. In the event of such cancellation, Purchaser shall not be obligated to pay for the applicable cancelled element(s), unless such cancellation is the direct result of the failure of Purchaser to provide Purchaser Material or approvals to CPA in a timely manner. CPA, acting reasonably, shall determine the value of the applicable cancelled element(s) in question. Notwithstanding the cancellation of any particular element(s), where CPA continues to use the Purchaser Material in other Service elements (if any), the applicable grant of rights, indemnities, representations and warranties shall survive.
5.8 CPA is expressly authorized to takedown, remove or reject any Purchaser Material or Service material in its absolute discretion, including if CPA determines that any such material may infringe: (a) the rights of any party; (b) any applicable federal, provincial and local laws and regulations (collectively, “Applicable Laws”); (c) any CPA policy and/or standards (technical or otherwise) as provided by CPA; or (d) any rules imposed by underlying rights holders any authorized advertising clearance agency, as applicable.
5.9 Purchaser acknowledges that it shall not include in the Purchaser Material any products or services that violate any of the categories sold by CPA on an exclusive basis, as may be advised by CPA from time to time.
5.10 In CPA’s sole discretion, the word “Advertisement” (or such similar term or phrase, including the word “paid”) may be placed above copy or before or after an advertisement which CPA determines resembles any CPA or other editorial material or that is not immediately identifiable as an advertisement.
6.1 Purchaser warrants, represents and covenants to CPA that (a) it has the full right and power to offer the Purchaser Material for exhibit by CPA and to enter into this Agreement; (b) the Purchaser Material does not contain any defamatory, libelous or slanderous material and will not violate any individual rights, including intellectual property rights and rights of privacy, publicity or personality of any person or any Applicable Laws; (c) the Purchaser Material is free of any harmful components, including, without limitation, malware, ransomware, maladvertisements, computer viruses, Trojan horses, backdoors or similar defects; (d) Purchaser has not dropped cookies or pixel fires on CPA users, scraped page content, recorded page URLs or categorized page content on CPA platforms; and (e) it has obtained all consents, releases, waivers and rights necessary for the use of such Purchaser Material on all applicable media platforms, as contemplated by each Order. Purchaser shall ensure that the Purchaser Material (including any music, literary, artistic and dramatic works, sound recordings and performers’ performances) has been cleared to the full extent necessary for exhibit by CPA in accordance with the applicable Order.
6.2 Purchaser acknowledges that CPA does not provide legal advice in connection with any Service or Service element, and Purchaser shall obtain its own independent legal advice in this regard.
7.1 CPA’s liability under this Agreement, including in the event of Force Majeure, shall be limited solely, at CPA’s option, to: (i) reimbursement as liquidated damages of any amounts prepaid by Purchaser for advertising time/space not yet exhibited or published by CPA; (ii) the provision to Purchaser as liquidated damages of a reasonable make-good; or (iii) a reasonable reduction to future invoice(s) for advertising time/space not yet exhibited or published by CPA.
7.2 In no event shall CPA be liable for any consequential, incidental, indirect, special or punitive damages, whether arising in tort, contract or otherwise.
7.3 CPA shall not be responsible for errors or omissions in any Purchaser Material, including errors in key numbers, or for any changes made to any Service material after the applicable closing date.
7.4 CPA shall be under no liability for the failure, for any reason, to publish or otherwise exhibit any Service elements in accordance with the terms of this Agreement.
7.5 CPA’s liability hereunder shall in all cases be limited to amounts paid by Purchaser pursuant to the applicable Order.
7.6 CPA shall exercise normal precautions but assumes no liability for loss of, or damage to, material or other property furnished by Purchaser, including, without limitation, the Purchaser Material.
8.1 Purchaser shall defend, indemnify and hold harmless CPA and its employees, officers, directors, shareholders, agents and representatives from and against all allegations, threats, claims, suits, demands, actions and other proceedings, including, but not limited to, all legal fees and costs, related to or arising out of: (a) any breach by Purchaser of these Terms; (b) any damages and costs incurred by CPA as a result of Purchaser’s non-compliance with Applicable Laws, including, without limitation; (c) any statements and/or claims made in any advertising approved by Purchaser.
9.1 This Agreement and all Orders made pursuant to it are subject to all terms of licenses held by the parties hereto and all Applicable Laws.
9.2 This Agreement shall be governed by and interpreted in accordance with the exclusive laws of the Province of Ontario and the federal laws of Canada applicable therein. Any proceeding relating to the subject matter of this agreement shall be within the exclusive jurisdiction of the courts of the Province of Ontario sitting in Ottawa.
9.3 This Agreement, together with any rights under it, may not be assigned or transferred by Purchaser without the prior written consent of CPA. CPA shall not be required to exhibit any advertising other than that identified on any particular Order.
9.4 Each party will maintain the confidentiality of the other party’s confidential information and shall not divulge or announce the other party’s confidential information without prior written consent, unless such information (a) becomes known to the general public without fault or breach on the part of the receiving party; (b) is received by the receiving party from a third party without breach of a non-disclosure obligation and without restriction on disclosure; (c) is information that the receiving party can show with documentary evidence was in its possession prior to disclosure by the disclosing party; (d) is independently developed by the receiving party’s personnel having no access to similar confidential information obtained from the disclosing party; or (e) is required to be disclosed by applicable law or court order. A party required by law to disclose or transfer the other party’s confidential information will notify the other party to allow it to seek available relief to prevent disclosure prior to complying with any such requirement. Both parties undertake to only disclose the minimum information necessary where such legally required disclosure cannot be prevented. Notwithstanding the foregoing, either party may divulge the other party’s confidential information to those individuals having a need to know if retained by a party to perform such party’s obligations under this Agreement, provided that such individuals are bound by confidentiality provisions no less strict than those in this Agreement.
9.5 Failure of CPA or Purchaser to enforce any of the Terms in the event of breach shall not be construed as a general relinquishment or waiver as to that provision.
9.6 Unless otherwise stated herein, all notices provided hereunder shall be in writing and shall be given either by registered mail, facsimile or by personal delivery, addressed to CPA, Agency or Advertiser, at the addresses contained on the applicable Order. Any such notice if mailed shall be deemed to have been received upon the expiration of 48 hours after the same was posted, and if faxed or delivered, shall be deemed to have been received on the day on which it was faxed or delivered.
9.7 In the event of a conflict between these Terms and the provisions of an Order, the provisions of the Order shall prevail.
9.8 This Agreement, including the documents referenced herein (including the Order(s)), constitutes the entire agreement between the parties relating to the subject matter hereof, and no changes or modifications of any of its terms or provisions shall be effective unless made in writing, signed by the parties (and in CPA’s case, only by a senior member of its management team) and incorporated into this Agreement; provided, however, that CPA reserves the right to unilaterally revise these Terms from time to time. CPA will post any updated Terms on any applicable CPA websites. Purchaser shall be responsible for periodically reviewing such a website for notice of any changes to these Terms. Purchaser’s continued purchase of Services or Service elements subsequent to any revision to these Terms shall constitute Purchaser’s agreement and acceptance of such revised Terms.
9.9 If Agency is entering into this Agreement on behalf of Advertiser, Agency confirms that Advertiser has been provided a copy of these Terms and the Order(s) and that it is authorized to bind Advertiser to this Agreement.
9.10 Unless Purchaser provides CPA with an objection in writing within five (5) business days of receipt of the Order(s) from CPA, Purchaser shall be deemed to have accepted the terms regardless of whether Purchaser provides CPA with a signed copy of the Order(s).
9.11 The representations, warranties, terms, conditions, indemnities, and liabilities set forth herein shall survive termination or expiry of this Agreement.
9.12 This Agreement has been drawn up in the English language at the express request of the parties. Les présentes modalités ont été rédigées en anglais à la demande expresse des parties.