1. DEFINITIONS AND NATURE OF AGREEMENT
“Agreement” means these General Terms and Conditions together with the associated Order(s) and (where applicable) any other binding and subsisting agreement entered into by the Client and Cision which incorporates these General Terms and Conditions by reference.
“Cision” means CNW Group Ltd. (a Cision company) with its principal place of business at 88 Queens Quay West, Suite 3000, Toronto, ON M5J OB8.
“Client” means the party entering into this Agreement and providing payment for services offered by Cision.
“Order” means each order placed by the Client using Cision’s secure customer portal (the Online Member Centre or any successor portal from time to time), or any other order placed by the Client using an alternative method (such as email) and accepted by Cision.
“Services” means the services that the Client is purchasing from Cision under each Order.
If the parties have already entered into a binding and subsisting agreement which incorporates these General Terms and Conditions by reference, a separate Agreement is not formed by each Order, but each Order shall be governed by the latest General Terms and Conditions (available on this page) at the time each Order is placed.
In all other cases, a separate Agreement is formed at the point in time that each Order is placed, and the Order shall be governed by the latest General Terms and Conditions (available on this page) at that time.
2. SERVICES – Subject to the terms and conditions of this Agreement, Cision will provide the services ordered by the Client in accordance with this Agreement. Cision reserves the rights, in its discretion, to (i) make changes to the Services, so long as such changes do not have a material, adverse impact on the Services; and (ii) delegate the performance of the Services (or any portion thereof) to one or more third party subcontractors, provided that (unless expressly stated otherwise) Cision will be liable to the Client for those of its obligations that are performed by such third party subcontractors.
3. CUSTOMER INFORMATION – The Client will promptly notify Cision in writing of any change to its contact, administrator or user names, addresses, telephone numbers, credit card or other information provided to Cision in connection with the Services. The Client acknowledges that Cision’s performance of the Services may be delayed or disrupted by the Client’s failure to update such information in a timely manner and Cision is not liable for any damages caused to the Client in connection therewith.
4. THIRD PARTY AGREEMENTS – If the Client enters into this Agreement as an agent for the end user of the Services, the Client will notify Cision and bind the end user to a written agreement acknowledging the agency and containing terms and conditions similar in all material respects to those of this Agreement, including making Cision a third party beneficiary of that Agreement. The Client will provide a copy of such agreement to Cision.
5. WAIVER OF TERM – The provisions of Section 2125 of the Civil Code of Quebec will not be applicable to this Agreement.
6. ADDITIONAL PAYMENT TERMS – All fees are exclusive of applicable taxes, including goods and services tax (GST), harmonized sales tax (HST) and provincial sales tax (PST) and, except as specifically provided herein, non-refundable. Any amounts not paid by the date due are subject to interest at the lesser of (i) 1.5% per month (18% per annum calculated and compounded monthly); or (ii) the maximum rate permitted by law. The Client will reimburse Cision for all legal fees and collection costs and expenses incurred in connection with enforcement of this Agreement, including collection of all fees and payments. Cision also reserves the right to impose a reasonable charge for any costs it may incur in connection with a regulatory request or subpoena pertaining to the Client or the Client’s use of the Services and/or the Client’s business in general where Cision is not a party to such action. Any additional Services or reallocation of Service categories, requested by the Client, will be charged and/or adjusted in accordance with Cision’s standard policies. Any credit/payment/“Net” terms offered by Cision (including those expressly set out in any part of this Agreement) are subject to and conditional on the receipt and maintenance of satisfactory credit checks, at Cision’s discretion. The Client hereby authorizes and consents to Cision performing credit checks and investigations, obtaining business and other credit reports, and contacting trade, banking and other references. The Client agrees to promptly provide Cision with references and any other information requested by Cision to support this process.
7. INSURANCE – Cision will obtain and will maintain at all times during the provision of the services insurance with responsible insurers against such risks and in such amounts as could reasonably be expected to be carried by persons acting prudently in the performance of substantially similar services to the Client pursuant to this Agreement.
8. INDEPENDENT CONTRACTOR – Cision will perform the Services as an independent contractor and Cision’s employees or agents are not the Client’s employees or agents for tax purposes or any other purposes whatsoever and will not be entitled to any of the benefits provided by the Client to its employees. Nothing herein will be construed to place the Client or Cision in a position of principal and agent, partners or joint venturers and neither party will have the power to obligate or bind the other.
9. PROPRIETARY RIGHTS – All intellectual property rights in, and ownership of, all materials provided by the Client and any deliverables developed by Cision for the Client hereunder will be and will remain the sole and exclusive property of the Client from and after their creation. Cision may use such materials solely for the purpose of performing the Services.
10. CONFIDENTIAL INFORMATION – Cision will use all commercially reasonable efforts to maintain the confidentiality of, and not to use for purposes unrelated to this Agreement, any confidential information or material relating to the Client, its affiliates or their respective past, present or future customers, suppliers, business or operations that comes into the possession of Cision in connection with this Agreement, including the performance by Cision of the Services. The foregoing will not apply to information in the public domain or which has been previously obtained by Cision from a third party without breach of any obligation of confidentiality, or to information required to be disclosed by law. The Client will maintain the confidentiality of all pricing information provided by Cision or its affiliates.
11. REPRESENTATIONS AND WARRANTIES OF CISION – Cision represents and warrants that (i) it has the right, power and authority to enter into this Agreement, (ii) it will comply with all laws applicable to it in connection with the provision of the Services to the Client, and (iii) it has all necessary intellectual property rights to the process, techniques and equipment it uses for the purposes of providing the Services.
12. CLIENT INDEMNIFICATION OBLIGATION – The Client agrees to defend, indemnify and hold Cision, its officers, directors, employees, agents and affiliates, harmless from and against any and all claims, demands, liabilities, judgments, losses and expenses of any kind, including fees, costs and expenses of counsel, brought against or involving Cision that relate to or arise out of breaches by the Client of Representations and Warranties of Client hereunder.
13. REPRESENTATIONS AND WARRANTIES OF CLIENT – The Client represents and warrants that (i) it has the right, power and authority to enter into and perform this Agreement and to grant the rights granted to Cision hereunder; and (ii) it will comply with all laws applicable to it in connection with its receipt and use of the Services provided by Cision hereunder.
The Client is solely liable for the accuracy and authenticity of any content submitted by the Client to Cision (the “Content”) for distribution, and the Client represents and warrants to Cision as follows:
The Client further represents and warrants to Cision that, if the Services require Cision to send electronic messages to electronic addresses provided to Cision by the Client on the Client’s behalf, the Client has obtained the requisite authority and consent under any applicable laws, including all privacy and anti-spam laws, to permit Cision to send such electronic messages.
14. CISION DISCRETION – Cision may reject any Content if Cision determines, in its sole discretion, that the Content is unsuitable for distribution. Unsuitable Content may include Content that contains sexually explicit materials, promotes violence, promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promotes illegal activities, or otherwise violates the intellectual property right of any person or entity. If Cision rejects the Content, the Client is welcome to resubmit alternative Content at any time.
15. DISCLAIMER OF WARRANTIES – OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 11 ABOVE (REPRESENTATIONS AND WARRANTIES OF CISION), CISION DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. CISION DOES NOT WARRANT THAT THE SERVICES WILL BE DELIVERED FREE FROM ERRORS, OMISSIONS, INTERRUPTIONS, DELAYS, LOSSES OR DEFECTS, WHETHER HUMAN OR MECHANICAL. THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE PARTIES EXPRESSLY ACKNOWLEDGE THAT NONE OF THE SERVICES TO BE PROVIDED BY CISION CONSTITUTES THE SUPPLY OF LEGAL ADVICE.
16. LIMITATIONS OF LIABILITY – IN THE EVENT OF ANY BREACH OF THE PROVISIONS OF THIS AGREEMENT, INCLUDING ANY ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR OTHER DEFICIENCIES IN THE DELIVERY, ACCESS OR TRANSMISSION OR NON-TRANSMISSION OF INFORMATION, OR THE USE OF OR INABILITY TO USE ANY PRODUCT OR SERVICE PROVIDED BY CISION (COLLECTIVELY “DEFICIENCIES”) MADE, NEGLIGENTLY OR OTHERWISE, BY CISION AND/OR ITS EMPLOYEES, AGENTS, THIRD PARTY SUPPLIERS, OR CONTENT PROVIDERS, CISION’S SOLE RESPONSIBILITY UNDER THIS OR ANY OTHER AGREEMENT WITH CLIENT WILL BE LIMITED TO USING ITS COMMERCIALLY REASONABLE EFFORTS TO CORRECT SUCH DEFICIENCIES OR, IF CISION DETERMINES THAT SUCH CORRECTION IS COMMERCIALLY IMPRACTICABLE, TO PROVIDE A REFUND TO THE CLIENT FOR THE AFFECTED PORTION OF THE SERVICE WHICH CORRECTION OR REFUND SHALL CONSTITUTE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND CISION’S SOLE LIABILITY FOR ANY ERROR OR DEFECT IN THE SERVICE. IN NO EVENT WILL CISION BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, OPPORTUNITY OR GOODWILL, ARISING DIRECTLY OR INDIRECTLY FROM ANY BREACH BY CISION OF THIS AGREEMENT (COLLECTIVELY “LOSSES”) EVEN IF CISION HAS BEEN ADVISED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES. IN NO EVENT WILL CISION’S TOTAL AGGREGATE LIABILITY WITH RESPECT TO EACH ORDER, INCLUDING ANY REFUND FOR DEFICIENCIES, WHETHER ARISING FROM CONTRACT, TORT OR OTHER THEORY OF LIABILITY, EXCEED THE TOTAL FEES CLIENT HAS PAID TO CISION WITH RESPECT TO THAT ORDER. THE FOREGOING LIMITATIONS OF LIABILITY SHALL SURVIVE A FUNDAMENTAL BREACH OF THIS AGREEMENT. THE PARTIES AGREE THAT ALL OTHER AGREEMENTS BETWEEN THEM EXISTING NOW OR IN THE FUTURE WILL BE DEEMED AMENDED TO INCORPORATE THE FOREGOING LIMITATIONS OF LIABILITY, MUTATIS MUTANDIS.
17. SUSPENSION & TERMINATION – Cision may, in its absolute discretion, refuse or cancel any Order (even after this Agreement has been formed) at any time before performance of the Services is completed, in which case it shall promptly notify the Client and refund any prepaid fees (which refund shall constitute the Client’s sole and exclusive remedy and Cision’s sole liability for refusing the Order). Cision may suspend its performance under this Agreement, in whole or in part, immediately on notice, without liability to the Client, if the Client materially breaches this Agreement. Cision will resume performance as soon as commercially practicable upon the Client’s cure of the breach. Cision may, immediately on notice, without liability to the Client, terminate this Agreement, in whole or in part, if the Client (i) fails to cure a material breach of this Agreement within ten (10) days of notice; (ii) undergoes a change of control, including by amalgamation, acquisition, corporate reorganization, sale of all or substantially all of its assets or otherwise; or (iii) is affected by a change in its ability to direct its affairs or insolvency event, or is unable to pay its debts when due; provided that, if Cision terminates the Agreement, in whole or in part, pursuant to (ii), Cision will provide a refund to the Client for any unused portion of the Services, which refund shall constitute the Client’s sole and exclusive remedy and Cision’s sole liability for the termination of the Agreement. The Client acknowledges that failure to pay fees or payments for Services when due shall be deemed a material breach of this Agreement. Termination, expiry or cancellation of this Agreement for any reason will not release either party from any obligation or terminate any right under this Agreement which, by its nature, is intended to survive, including the payment obligations set forth herein.
18. FORCE MAJEURE – Neither party will be liable to the other for any delay or non-performance of its obligations under this Agreement (other than the Client’s payment obligations herein) arising from any cause or causes beyond its reasonable control, including any of the following: acts of God, acts of terrorism, acts of government (including the requests or actions of any federal or provincial regulatory agency, any national securities exchange, or by any professional regulatory organizations), acts or omissions of third parties, war, fire, flood, explosion, civil commotion, industrial disputes, failure or unavailability of communications infrastructure (including networks, carriers, and internet and satellite providers), system malfunctions, or the inability, or severely impaired ability, to obtain goods or services (each, a “Force Majeure Event”). The performance of the delaying party’s obligations, to the extent affected by the Force Majeure Event, will be suspended during the period that the cause persists.
19. GENERAL – This Agreement includes any and all addenda, schedules or exhibits entered into between the parties and represents the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior agreements and understandings between the parties. If there is any inconsistency between the provisions of these General Terms and Conditions and those of any addenda, schedules or exhibits attached hereto, or any other agreement of the parties, these General Terms and Conditions will govern. Words denoting the singular include the plural and vice versa and words denoting any gender include all genders. All usages of the word “including” or “include” will mean “including, without limitation”, and the verb “will” shall have a mandatory meaning. The insertion of headings is for convenience of reference only and will not affect the construction or interpretation of this Agreement. Words or abbreviations which have well-known or trade meanings are used herein in accordance with their recognized meanings. Except as expressly provided herein, this Agreement will not be construed to grant the Client any right to resell or redistribute access to the Services; any and all rights not specifically granted herein to the Client are expressly reserved by Cision. The Client may not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of Cision. Cision reserves the right, at its sole discretion, to assign this Agreement or any of its rights and to delegate any of its duties hereunder, in whole or in part. This Agreement will be construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law provisions. The parties hereby attorn to the non-exclusive jurisdiction of the courts of Ontario to resolve any claim or dispute arising in connection with this Agreement. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. This Agreement will be binding upon the parties and enure to the benefit of their respective heirs, successors and permitted assigns. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. The failure of either party at any time or times to require full performance of any provision hereof will in no manner affect the right of such party at a later time to enforce the same. If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability will attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof will continue in full force and effect. Any notice by the Client required hereunder (including a notice of alleged breach or dispute) must be sent by e-mail to the Client’s Cision sales representative (if any), with a copy sent in writing and delivered by hand or by an overnight carrier with proof of delivery to CNW Group Ltd., 88 Queens Quay West, Suite 3000, Toronto, ON M5J 0B8, Attention: Vice President, Finance. All other notices in connection with this Agreement may be given by e-mail. The parties have requested that this Agreement and all documents and communications contemplated thereby or relating thereto be drawn up in the English language. Les parties ont requis que cette convention ainsi que tous les documents et communications qui y sont envisagés ou qui s’y rapportent soient rédigés en langue anglaise.
Last updated: March 19, 2020