M32 GENERAL TERMS AND CONDITIONS

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As used in this M32 General Terms and Conditions (“GTC”), a “Party” means either M32 or the Client, as appropriate and the “Parties” means M32 and the Client.

1. DEFINITIONS

    • “Application”means the web-based platform developed by M32 and identified in the applicable Order Form on which licence is granted to the Client.
    • “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
    • “Client” means the individual, person or legal entity that has executed an Order Form with M32.
    • “Client Data” means the data provided by the Client and/or its Users for the purpose of using the Application except for any data M32 may have a legal, legitimate interest and/or any other lawful grounds to preserve. Such data may be the Client’s data, including revenue and advertisement campaign data, its Users and/or the general public using the Client’s Digital Properties.
    • “Documentation” means user documentation describing the operation and/or functionality of the Application, its specifications and any other relevant information intended for the user of the Application.
    • “Effective Date” means the date the Parties have executed an applicable Order Form.
    • “Digital Properties” means the network of websites, web services, applications, newsletters, social media platforms and/or any other media website, application or platform used and operated by the Client and its Affiliates, including the Client’s Users, and used in connection with the Services hereunder, including but not limited to the Client’s own website, or web services, and third-party websites or web services.
    • “Maintenance Services” means ongoing maintenance and technical support services for the Application and its modules as outlined in the Order Form.
    • “M32 Material” means M32’s proprietary information, methodologies and materials, software tools, implementation scripts, computer programs and interfaces and their documentation, data acquired through the use of the Application or M32 technologies and algorithms, data analysis, any anonymous and aggregated information based on data acquired under this GTC, benchmarking, design flows, libraries, algorithms, databases and templates, network equipment, infrastructure, terminals and other equipment, wires, optic fiber cables, lines, circuits, ports, routers, switches, cabinets, racks, private rooms and the like.
    • “Order Form” means the ordering documents for purchases of Services hereunder, namely, the details of the licensed Application and relevant modules, usage rights, access permissions, term of licence, rates and other relevant information, entered into between the Client and M32 from time to time. The Order Form is subject to the terms and conditions of the present GTC.
    • “Services” means an online, web-based Application provided by M32 to the Client that entitles it to access and use the applicable Application and Documentation during the applicable Subscription Term including Maintenance Services, all collectively referred to as the Services.
    • “Subscription Fees” means the fees outlined in the applicable Order Form for the use of and access to the Services.
    • “Subscription Term” for each Order Form means the Initial Term (as defined in this GTC) and/or any Renewal Terms (as defined in this GTC).
    • “Users” means individuals who are authorized by M32 and/or the Client to use the applicable Application, for whom subscriptions to such Application have been purchased and who have been supplied user identifications and passwords by the Client or M32 upon the Client’s request. For greater certainty, M32 shall have the right to accept, deny and/or limit a user’s access to or use of the Application. “Users” may include but are not limited to Client employees, consultants, contractors and agents.

2. USE OF APPLICATION

    • Order Form. The Client shall have the right to use the Application with the applicable modules as identified in the Order Form mutually executed by the Parties for the Subscription Term.
    • Licence Rights. Subject to the terms and conditions of this GTC, M32 hereby grants to the Client a limited, non-exclusive, revocable, non-transferable, non-sublicensable right during the Subscription Term to use and access the Application and specified modules, including M32 Material, as made available by M32 to the Client in connection with an applicable Order Form, along with its Documentation solely in connection with the Client’s internal business operations and scope of use as outlined in the Order Form.
    • Maintenance Services. For so long as the Client is current with its payment of any fees payable under this GTC, M32 shall provide the Client with the Maintenance Services as specified in the maintenance and support schedule set forth in the Order Form.

3. PAYMENT AND FEES

    • Subscription Fees. The Client shall pay M32 the Subscription Fees outlined in the applicable Order Form plus any applicable taxes. Unless otherwise specified in the applicable Order Form, all amounts payable under an Order Form are denominated in Canadian dollars.
    • Payment Terms. The Subscription Fees will be invoiced upon execution of the applicable Order Form, on a monthly basis and in arrears, in accordance with the terms outlined in the Order Form. M32’s Subscription Fees shall be paid within thirty (30) days from M32’s invoice date. If the Client believes that M32 has billed the Client incorrectly, the Client shall notify M32 in writing no later than 30 days after the date of the invoice, otherwise the invoice amount shall be conclusively deemed correct and payable. Amounts due from the Client under an Order Form may not be withheld or offset by the Client against amounts due to the Client by M32 for any reason.
    • Late Payments. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid.
    • Suspension of Services. If any amount owed by the Client under an Order Form is overdue for more than 60 days (or 10 or more days overdue in the case of amounts the Client has authorized M32 to charge to the Client’s credit card), M32 may, without limiting M32’s other rights and remedies under this GTC and/or applicable laws, request all fees payable during the Subscription Term to be immediately due and payable, and suspend Services to the Client until the fees are paid in full.
    • Taxes. Unless otherwise stated, the M32 fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively “Taxes”). The Client is responsible for paying all Taxes associated with the Client’s purchases hereunder.

4. TERM, RENEWAL AND TERMINATION

    • Order Form Term.” The term for each Order Form shall commence on the Effective Date of the applicable Order Form (or, if no effective date is specified, on the date the Order Form has been executed by both the Client and M32) and shall be in effect for the term specified in the Order Form provided. If no such term is indicated in the Order Form, the initial term shall be for one year (the “Initial Term”). The term of each Order Form will automatically renew for successive periods equal to the length of the Initial Term (each, a “Renewal Term”) unless the Order Form provides otherwise or a Party provides the other Party written notice 30 days in advance of the expiry of the Initial Term or the then-current Renewal Term. If the Client terminates an Order Form prior to the completion of the Initial Term or the then-current Renewal Term, as applicable, it will pay M32 any unpaid Subscription Fees under such Order Form for the remainder of the Subscription Term.
    • Termination for Cause. ”A Party may terminate an Order Form for cause: (i) upon 30 days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such 30-day period, or (ii) immediately upon written notice if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
    • Refund or Payment on Termination. ”Upon any termination of an Order Form for cause by the Client, M32 shall refund the Client any prepaid fees covering the remainder of the Subscription Term of the applicable Order Form. Upon any termination for cause by M32, the Client shall pay any unpaid fees covering the remainder of the Subscription Term of the applicable Order Form. In no event shall any termination relieve the Client of the obligation to pay any fees payable to M32 for the period prior to the effective date of termination.
    • Return of Client Data.” Within thirty (30) days from the termination of an Order Form, M32 shall permanently delete the Client Data and certify to the Client that it has permanently deleted the Client Data.
    • Survival. ”The following articles shall survive the termination of any Order Form: 1, 4, 5, 6, 7, 8, 9, 10.

5. INTELLECTUAL PROPERTY

    • Intellectual Property Rights. ”M32 retains all right, title, and interest to all software, products, works, deliverables, analysis, work product, documents, reports and other material created, used, or provided by M32 under any and all Order Forms, including, but not limited to, the Application, Documentation, Approved Data, M32 Material or any analysis performed by M32. M32 shall own all right, title, and interest in and to all modifications or derivative works and improvements to the Application, Documentation and any other material created, developed and provided by M32 under any and all Order Form.
    • Restrictions. ”Except as otherwise explicitly provided herein or as may be expressly permitted by applicable law, the Client shall not and will not permit or authorize third parties to (a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Application or Documentation in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application; (b) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Application or Documentation, or otherwise make the Application or Documentation available to any third party except the Users; and/or (c) circumvent or disable any security or other technological features or measures of the Application.

6. CONFIDENTIALITY

    • Definition. ”As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Client’s Confidential Information includes Client Data; M32’s Confidential Information includes its Application, Approved Data, M32 Material, all Documentation and the work product of all Services including M32’s financial, security, architectural or similar information; and Confidential Information of each Party shall include the terms and conditions of this GTC and each Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by or on behalf of such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
    • Obligation.” Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this GTC, and (ii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this GTC and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, M32 is also permitted to disclose Confidential Information of the Client on a need-to-know basis to employees, contractors and agents of its direct and indirect parents, subsidiaries and sister entities.

7. DISCLAIMER

    • Disclaimer. ”EXCEPT AS SET FORTH IN SECTION HEREIN, THE APPLICATION, USE AND ACCESS THERETO, THE DOCUMENTATION AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND M32 AND ITS AFFILIATES AND AGENTS (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) SHALL IN NO EVENT BE LIABLE TO THE CLIENT OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS OF ANY APPLICATION, DOCUMENTATION OR SERVICES. M32 EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF THE CLIENT’S USE OF ANY APPLICATION, DOCUMENTATION OR SERVICES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES. IN SUCH JURISDICTIONS, M32’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

8. WARRANTIES AND INDEMNIFICATION

    • Mutual Warranties.” Each Party represents and warrants to the other that: (a) this GTC has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this GTC.
    • Indemnification by M32. ”M32 warrants and represents at all times that, to the best of its knowledge, the Services will not infringe the intellectual property rights held by any third party. In the event that a third party initiates any action against M32 based on an infringement claim in respect of intellectual property rights of that third party, M32 may, at its sole option, either (a) obtain for the Client the right to continue using the Application, (b) replace or modify the Application so that the Application no longer infringes or misappropriates the intellectual property rights of a third party; however, providing substantially the same functionality, or (c) terminate the Services. M32 shall indemnify, defend and hold the Client harmless from and against any and all third-party claims, actions, losses, damages, liabilities, reasonable costs and expenses (including reasonable outside attorneys’ fees) resulting from or arising out of or in connection with any breach of the foregoing representations and warranties. The Client shall promptly notify M32 of all claims and proceedings related thereto of which the Client becomes aware.
    • Exclusions. ”M32 will have no obligation under this Section for any infringement or misappropriation to the extent that it arises out of or is based upon (i) use of an Application in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (ii) use of an Application by the Client for purposes not intended or outside the scope of the licence granted to the Client; or (iii) any modification of an Application not made or authorized in writing by M32 where such infringement or misappropriation would not have occurred absent such modification.
    • Indemnification by Client. ”The Client warrants and represents at all times it owns and/or has the right to use any and all Client Data and all materials contained on the Client’s and/or its Affiliates’ Digital Properties and/or applications, including, without limitation, all copyrights, trademarks and other proprietary rights in and to such materials, (i) has secured the requisite permission or consent to use the Client Data and provide it to M32 for processing, (ii) has secured that the Client Data does not contain any messages or images that are in violation of applicable laws, (iii) will use the Application in accordance with the terms and conditions hereof and applicable law; and (iv) will not use the Services for purposes of segmenting, re-targeting, creating or supplementing user profiles or inventory profiles, creating, supplementing or amending interest categories, or syndication or other distribution to third parties, unless such data collection and usage are authorized by or on behalf of the data owner. In furtherance of the foregoing, the Client agrees to indemnify and hold M32 harmless from and against any and all third-party claims, actions, losses, damages, liability, reasonable costs and expenses (including reasonable outside attorneys’ fees) arising out of or in connection with the breach of the foregoing representations and warranties. M32 shall promptly notify the Client of all claims and proceedings related thereto of which M32 becomes aware.

9. LIMITATIONS OF LIABILITY

    • Limitation of Liability.” EXCEPT FOR LIABILITY ARISING OUT OF BREACHES OF CONFIDENTIALITY OBLIGATIONS HEREIN, ACTS OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES 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. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
    • Liability Cap.” EXCEPT FOR LIABILITY ARISING OUT OF BREACHES OF CONFIDENTIALITY OBLIGATIONS HEREIN, ACTS OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS GTC, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF THE ACTUAL DIRECT DAMAGES SUFFERED BY A PARTY RELATED TO SUCH SINGLE INCIDENT OR THE TOTAL AMOUNT PAID BY THE CLIENT TO M32 IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT OF LIABILITY. THE FOREGOING SHALL NOT LIMIT THE CLIENT’S PAYMENT OBLIGATIONS HEREUNDER.

10. GENERAL

    • Relationship. ”M32 will be and act as an independent contractor (and not as the agent or representative of the Client) in the performance of this GTC.
    • Assignability. ”Neither Party may assign performance of this GTC or any of its rights or delegate any of its duties under this GTC without the prior written consent of the other. Notwithstanding the preceding sentence, each Party may assign this GTC without the other Party’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this GTC shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
    • Notices. ”All notices to a Party shall be in writing to the appropriate Party at the address set forth in the applicable Order Form and shall be made either via email (to the extent expressly permitted to be sent by email as set forth in this GTC), conventional mail, overnight courier or facsimile. Notice sent via conventional mail, using registered mail, shall be deemed received four business days after mailing. Notice sent via email (to the extent expressly permitted) or facsimile or overnight courier shall be deemed received the second day after having been sent. M32 may broadcast notices or messages through the applicable Application or by posting notices or messages on M32’s website to inform the Client of changes to the Services, or other matters of importance. Either Party may change its address for receipt of notice by notifying the other Party in writing.
    • Force Majeure. ”Neither Party shall be liable in damages or have the right to terminate this GTC or any Order Form for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control, including but not limited to acts of God, government restrictions (including the denial or cancellation of any export of other necessary licence), wars, insurrections and/or any other cause beyond the reasonable control of the Party whose performance is affected (including mechanical, electronic, internet service provider or communications failure) (“Force Majeure”).
    • Dispute Resolution, Venue, Governing Law. ”Any and all disputes, controversy or claims related to or arising in connection with this GTC shall first be referred to the named executive sponsor, or designated persons, of each of the Parties for an informal resolution. If this informal resolution does not resolve the dispute within 30 days, then both Parties shall hereby irrevocably submit any disputes under this GTC to the non-exclusive jurisdiction of the courts located in Montréal, Quebec, Canada. Each Party agrees to the governing law above without regard to choice or conflicts of law provisions. The Parties hereby agree that the present GTC shall be subject to the laws of the Province of Quebec and the laws of Canada as may be applicable.
    • Waiver. ”The waiver by either Party of any breach of any provision of this GTC does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this GTC will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this GTC.
    • Severability. ”Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this GTC without affecting the legality or enforceability of the remaining portions.
    • Counterparts.” This GTC may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
    • Entire Agreement. ”This GTC and the schedules, exhibits or attachments, if any, constitutes the entire agreement between the Parties hereto regarding the Client’s use of the Application and receipt of all Services and supersedes and replaces all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof. In the event of conflict between the terms of any Order Form and the terms herein with regard to the subject matter of this provision, the terms of this GTC will prevail. These terms and conditions apply to future purchases of products and services by the Client from M32. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this GTC. This GTC may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought.

April, 2021

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