This Workopolis Affiliate Publisher Agreement, including the form used to register on the Workopolis Affiliate Publisher account registration webpage, which is incorporated into this agreement by reference (collectively the
Agreement), is a binding agreement entered into by and between Workopolis, a partnership formed pursuant to the laws of the Province of Ontario, and the person or entity identified in the online registration form (the
Affiliate Publisher) effective on the date on which this Agreement is accepted by Affiliate Publisher either by registering as an Affiliate Publisher or by downloading, installing or using the Workopolis Job Widget (the
WORKOPOLIS PROVIDES THE WORKOPOLIS JOB WIDGET AND ANY OTHER SOFTWARE AND CONTENT SOLELY ON THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT AND ON THE CONDITION THAT AFFILIATE PUBLISHER ACCEPTS AND COMPLIES WITH THEM.
BY CHECKING THE "I AGREE" BOX ON THE WORKPOLIS AFFILIATE PUBLISHER ACCOUNT REGISTRATION PAGE OR BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU: (A) ACCEPT THIS AGREEMENT AND AGREE THAT THE AFFILIATE PUBLISHER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT IF AFFILIATE PUBLISHER IS A CORPORATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE AFFILIATE PUBLISHER AND BIND THE AFFILIATE PUBLISHER TO ITS TERMS.
IF AFFILIATE PUBLISHER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE WORKOPOLIS JOB WIDGET OR ANY OTHER SOFTWARE TO AFFILIATE PUBLISHER AND YOU MUST NOT DOWNLOAD OR INSTALL OR USE THE SOFTWARE.
1. Delivery of Job Advertisements. Subject to the terms and conditions of this Agreement, and provided that the Workopolis Job Widget is installed in accordance with the terms of this Agreement on each Affiliate Publisher website authorized by this Agreement as a part of the registration process (each a
Site), Workopolis will make certain job advertisements available to the Affiliate Publisher for uploading and posting by Affiliate Publisher on the Site(s).
2. Workopolis Job Widget. Subject to and conditional upon Affiliate Publisher's strict compliance with all terms and conditions set out in this Agreement, and with all terms and conditions that directly or indirectly relate to Workopolis as the
Advertiser set out in the Publisher Service Agreement (as such term is defined in Section 11 below), Workopolis hereby grants to Affiliate Publisher a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to: (i) access the Workopolis Job Widget customization tool at Workopolis.com from time to time to configure a customizable software widget that will permit Affiliate Publisher to pull select job advertisements from Workopolis for uploading to and posting to the Sites (the
Workopolis Job Widget); and (ii) copy and paste the Workopolis Job Widget for installation solely on such computers as are owned or controlled by Affiliate Publishers and that host the Site(s) and solely for use in association with the authorized Site(s).
3. License to Workopolis. Affiliate Publisher hereby grants to Workopolis the right to install and incorporate into each Site, via the Workopolis Widget, such enabling tags and software codes, including any updates, fixes, patches and cookies as are necessary for Workopolis to deliver the job advertisements to the Sites and to properly track and report on job advertisements (together with the Workopolis Job Widget, collectively the
Software). It is a condition to the delivery of job advertisements to Affiliate Publisher that Affiliate Publisher maintain such tags and codes throughout the Term.
4. Login and Passwords. Workopolis will provide Affiliate Publisher with login and password information to the Workopolis Site to be used by Affiliate Publisher in connection with the Workopolis Job Widget development tool and in connection with the delivery of job advertisements to each Site. Affiliate Publisher will not disclose or share any login or password information that is issued to Affiliate Publisher with any third party and will not use the Workopolis Job Widget to deliver job advertisements to any websites other than the Sites.
5. Software Use Restrictions. Affiliate Publisher shall not, directly or indirectly: (i) use or make copies of the Software beyond the scope of the license granted under this Agreement; (ii) provide any other person with access to or use of the Software; (iii) in any way modify, translate, adapt or otherwise create derivative works of the Workopolis Job Widget code or any other Software except solely through the use of the Workopolis Job Widget customization tool at Workopolis.com; (iv) remove, delete, alter or obscure any trade-marks or content embedded in or displayed through the use of the Workopolis Job Widget; (v) remove, delete, alter or obscure any copyright, trade-mark or other intellectual property or proprietary rights notices provided on or with the Software; (vi) except as expressly authorized by Section 3, copy the Software, in whole or in part; (vii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any third party for any reason; (viii) use the Software in violation of any law, regulation or rule; or (ix) use the Software for purposes of development of a competing software product or service or any other purpose that is to Workopolis' commercial disadvantage.
6. Compliance. Affiliate Publisher will not modify the job advertisements or any other content or information contained in the tags, codes and feeds provided by Workopolis. As between Affiliate Publisher and Workopolis, all such content and information, including without limitation the identity of the employers or Workopolis customers in respect of whom job advertisements are being delivered and the fees paid by them for publishing of the job advertisements, are proprietary to and the confidential information of Workopolis. Affiliate Publisher may not disclose the content or other information contained in the tags, codes or feeds provided by Workopolis to any third party and may not use such content or information for any purposes whatsoever other than the publication of the job advertisements on the Sites in accordance with the provisions of this Agreement, and then only in accordance with applicable laws (including laws that govern commercial electronic messages; privacy laws that govern the collection, storage, disclosure, transfer or use of personal information; and data security), industry standards, and Affiliate Publisher's privacy policies and other terms and conditions applicable to its Sites. Without limiting the generality of the foregoing, Affiliate Publisher will not use such content or information for targeting or soliciting an employer or other person on whose behalf Workopolis is delivering a job advertisement (each such person being a
7. No Improper Use. Affiliate Publisher shall not remove, delete, alter or manipulate the tags, code, feed or any other information delivered by Workopolis, or use any mechanical or other means, to artificially inflate completed job applications or click-through traffic counts, and shall not encourage or authorize others to do so. Workopolis will actively audit and monitor its platform and the Sites to ensure compliance with this provision.
8. Suspension of Service. In addition to, and not in substitution for, any other rights and remedies that may be available at law or in equity to Workopolis, if Workopolis determines, in its sole discretion, that Affiliate Publisher has breached any of the provisions of Sections 3 to 7 of this Agreement, Workopolis may suspend further delivery of job advertisements to Affiliate Publisher with or without prior notice to Affiliate Publisher by disabling the feed as it relates to any of the Sites.
9. Selection of Job Postings. Affiliate Publisher will be able to customize the Workopolis Job Widget prior to its download and installation on the Site(s) and set search parameters that will filter the types of job advertisements that might be delivered by Workopolis to the Site(s). However, the final selection of job advertisements that will be delivered to and displayed on the Site(s), as filtered in response to the search parameters set by Affiliate Publisher during its customization of the Workopolis Job Widget, is determined by Workopolis in its sole discretion.
10. User Data. Workopolis may, to the extent it deems appropriate, collect and compile certain data (
User Data) in connection with its performance of its obligations under this Agreement, including without limitation: IP addresses, browser types, device types, operating systems, referring URLs, dates and times of Site visits, job advertisement views, job application starts and job application completions. Workopolis will not collect or receive, and User Data does not include, any personal or personally identifiable information such as name, contact information (e.g., email address, physical address or telephone number), Social Insurance Number, driver's license number, payment card information or any job application data (other than confirmation that a job application has been started and completed). All User Data shall be the property of Workopolis and shall be deemed to be Confidential Information (as defined in Section 14 below) of Workopolis.
11. Payment and Commission Junction. Any and all consideration payable to Affiliate Publisher for the rights and obligations granted by Affiliate Publisher under this Agreement shall be paid by Commission Junction, Inc. (
Commission Junction) and settled directly between Affiliate Publisher and Commission Junction in accordance with the publisher service agreement (the
Publisher Service Agreement) and such additional agreements as may be entered into as between Affiliate Publisher and Commission Junction from time to time. Affiliate Publisher acknowledges and agrees that Workopolis shall have no responsibility for, or liability with respect to, any aspect of the Commission Junction service, including the making or settling of any payments to Affiliate Publisher. Workopolis makes no representations, warranties, covenants, or conditions, express or implied, including, but not limited to those relating to correctness, functionality, reliability, accuracy, operation or use, regarding the services of Commission Junction, including that Commission Junction's services will be error-free or will meet Affiliate Publisher's requirements, all of which are expressly denied and disclaimed to the maximum extent permitted by law. Affiliate Publisher is responsible for entering a valid Publisher Service Agreement and maintaining an account in good standing with Commission Junction. Any disputes regarding payment must be taken up directly with Commission Junction.
12. License to Job Advertisements. Subject to the terms of this Agreement and solely for the limited purposes of publishing job advertisements delivered by Workopolis on the Sites, Workopolis hereby grants Affiliate Publisher a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to display the job advertisements on the Sites. The license will immediately and automatically terminate if at any time Affiliate Publisher does not comply with any obligation under this Agreement on a timely basis, or otherwise upon termination of this Agreement.
13. Term and Termination. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth in this Agreement (the
Term). Either party may terminate this Agreement at any time, effective upon ten (10) calendar days' written notice to the other party. Workopolis may also terminate this Agreement, effective immediately upon written notice to Affiliate Publisher, if Affiliate Publisher, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for five (5) calendar days after Workopolis provides written notice thereof. Workopolis may terminate this Agreement, effective immediately, if Affiliate Publisher files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property. Upon expiration or earlier termination of this Agreement, the license granted under this Agreement shall also terminate, and Affiliate Publisher shall cease using and erase all copies of the Workopolis Job Widget and any other Software.
14. Confidentiality. Except as expressly provided in this Agreement, each party agrees that it shall not publish or otherwise disclose, and shall not use for any purpose except as expressly authorized by this Agreement, any non-public information about or received from the other party or its business or activities that was furnished to the receiving party by the disclosing party and which: (i) if disclosed in tangible form is marked "Confidential" or with other similar designation to indicate its confidential or proprietary nature, or (ii) if disclosed orally is indicated orally to be confidential or proprietary by the disclosing party disclosing such information at the time of such disclosure, or (iii) is confirmed in writing as confidential or proprietary by the disclosing party within a reasonable time after such disclosure, or (iv) by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential (collectively,
Confidential Information). Without limiting the foregoing, all User Data shall be deemed to be the Confidential Information of Workopolis. Notwithstanding the foregoing, Confidential Information shall not include information that, in each case, as demonstrated by written documentation: (i) was properly in its possession or properly known by it, without restriction, prior to receipt from the disclosing party; (ii) was rightfully disclosed to it by a third party without restriction; (iii) is or becomes generally available to the public or otherwise part of the public domain, other than through any act or omission of the receiving party (or any subsidiary, agent or employee of the receiving party) in breach of this Agreement; (iv) was independently developed by the receiving party without reference to or use of any Confidential Information disclosed by the disclosing party; or (v) is approved in writing by the disclosing party for release.
15. Intellectual Property Rights. Affiliate Publisher acknowledges and agrees that the Software and job advertisements are provided under license, and not sold, to Affiliate Publisher. Affiliate Publisher does not acquire any ownership interest in the Software under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Workopolis and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Software and the job advertisements.
16. DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WORKOPOLIS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES AND SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, WORKOPOLIS PROVIDES NO REPRESENTATION OR WARRANTY OR COVENANT OF ANY KIND THAT THE WORKOPOLIS JOB WIDGET OR ANY OTHER SOFTWARE WILL MEET AFFILIATE PUBLISHER'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. NEITHER WORKOPOLIS NOR ANY OF ITS AFFILIATES NOR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS SHALL BE RESPONSIBLE OR LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, OR IN CONNECTION WITH, ANY THIRD PARTY DEALINGS OR TRANSACTIONS, INCLUDING BUT NOT LIMITED TO CHARGES INCURRED, SUPPORT, MAINTENANCE, LOST OR DAMAGED DATA, OR ANY ACTS OR OMISSIONS OF THE THIRD PARTY.
17. Indemnity. Each party shall defend, indemnify and hold harmless the other party and its officers, directors, shareholders, agents, employees and assigns (collectively, the
Indemnitees), from and against any and all third-party claims, demands, suits, judgments, losses, or expenses (including reasonable legal fees) arising directly or indirectly, in whole or in part, from or out of: (i) any breach by the indemnifying party of its representations, warranties or covenants contained in this Agreement; (ii) any wrongful action or inaction of the indemnifying party that forms the basis of the claim against the Indemnitees brought by the third party; or (iii) any violation by the indemnifying party of any applicable law. Notwithstanding the foregoing, in no event shall a party be obligated under this Section to indemnify, defend and hold harmless the Indemnitees for any losses which result from the negligent or willful omissions or acts of the Indemnitees.
18. LIMITATION OF LIABILITY. WITH THE EXCEPTION OF A BREACH OF THE OBLIGATIONS OF CONFIDENTIALITY UNDER THIS AGREEMENT, AND WITH THE EXCEPTION OF A CLAIM FOR INDEMNIFICATION MADE PURSUANT TO THE PROVISIONS OF THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY, INCLUDING APPLICABLE LEGAL FEES AND COURT COSTS, OF EITHER PARTY TO THE OTHER PARTY OR TO ANY THIRD PARTY CONCERNING PERFORMANCE OR NON-PERFORMANCE, OR IN ANY MANNER RELATED TO THIS AGREEMENT, INCLUDING FOR TERMINATION OF ACCESS TO THE SERVICES FOR ANY REASON, WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE FEES PAID OR PAYABLE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF THE SERVICES OR OTHERWISE RELATED TO THIS AGREEMENT, INCLUDING, DAMAGES FOR LOST PROFITS OR LOST BUSINESS. THIS PROVISION AND LIMITATION SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR ACTION, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY, AND WILL SURVIVE A FUNDAMENTAL BREACH OR FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT.
19. Notice. Any demand, notice or other communication to be given in connection with this Agreement must be given in writing and will be given electronic means of communication addressed to the recipient as follows: (i) To Workopolis: WRK_Billing@Workopolis.com; and (ii) to Affiliate Publisher to the email address provided by Affiliate Publisher at the time of registration or as updated in the Affiliate Publisher's account, or to such other address, individual or electronic communication number as may be designated by notice given by either party to the other. Any demand, notice or other communication given by electronic communication shall be conclusively deemed to have been given on the day of actual delivery thereof.
20. General. This Agreement constitutes the entire agreement between Workopolis and Affiliate Publisher with respect to the subject matter of this Agreement and cancels and supersedes any prior understandings, negotiations and agreements. Under no circumstances will the terms, conditions or provisions of any purchase order, invoice or other administrative document issued by Affiliate Publisher in connection with the Services or this Agreement be deemed to modify, alter or expand this Agreement, regardless of any failure of Workopolis to object to such terms, provisions, or conditions. No assignment of this Agreement shall be made by Affiliate Publisher without the prior written consent of Workopolis. This Agreement will be governed by and construed under and pursuant to the laws of the Province of Ontario without giving effect to its conflict of law provisions and the parties hereby irrevocably attorn to the jurisdiction of the courts of Ontario or the Federal Court sitting in the City of Toronto.