These Advertiser Terms & Conditions are incorporated into and form part of the Agreement in accordance with clause 1.1 of the Client Terms & Conditions.
In the interpretation of this Agreement, the following provisions apply unless the context otherwise requires:
- (a) a reference to “dollars” or “$” means Canadian dollars and all amounts payable under this agreement are payable in Canadian dollars;
- (b) an expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency;
- (c) where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning;
- (d) word which indicates the singular also indicates the plural, a word which indicates the plural also indicates the singular, and a reference to a gender also indicates the other genders;
- (e) a reference to the word “include” or “including” is to be interpreted without limitation;
- (f) a reference to the word “owing” means actually or contingently owing, and “owe” and “owed” have an equivalent meaning;
- (g) a reference to a party, clause, part, schedule, annexure or attachment is a reference to a party, clause, part, schedule, annexure or attachment of or to this Agreement;
- (h) a reference to any document or agreement is to that document or agreement as amended, novated, supplemented or replaced;
- (i) the schedules, annexures and attachments form part of this Agreement;
- (j) headings are inserted for convenience only and do not affect the interpretation of this Agreement; and
- (k) a reference to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision, in either case whether before, on or after the date of this Agreement.
In these Terms and Conditions, except to the extent expressly provided otherwise:
- “Advertisement”means any and all advertisements provided by the Client to Finder;
- “Applicable Laws”means all laws applicable to the sale or marketing of the Client’s products or the performance of Finder’s obligations under this Agreement, and which are binging on or are expressed to apply to Finder or the Client from time to time;
- “Business Day”means any weekday other than a bank or public holiday;
- “Business Hours” means the hours of 09:00 to 17:00 EST on a Business Day;
- “Commission” means the fees payable to finder by the Client for the Service as specified in the applicable Insertion Order.
- “Contract” means a particular contract made under this Agreement;
- “Effective Date”means the date upon which the parties execute the Insertion Order; or, the date upon which Finder sends to the Client confirmation of the Insertion Order;
- “Insertion Order”(IO) means a written order form agreed by or on behalf of each of the parties;
- “Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
- “Terms and Conditions”means these terms and conditions, including any amendments to these terms and conditions from time to time.
3.1 The Client hereby grants to Finder, a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Advertisements to the extent reasonably required for the performance of Finder’s obligations and the exercise of Finder’s rights under the Contract.
3.2Finder shall not be liable to the Client in respect of any failure of Finder to comply with its obligations under the Contract to the extent that such failure arises out of any breach of this Agreement or the Applicable Laws by the Client.
3.3 The Client shall supply to Finder the information that is specified in the Insertion Order or that the parties otherwise agree in writing.
3.4 The Client warrants that the Advertisements will not infringe the Intellectual Property Rights of any person and will not breach the Applicable Laws.
3.5 All rights including but not limited to Intellectual Property Rights in the Advertisements shall at all times be owned by the Client and Finder acknowledges that it has no proprietary right or interest in the Advertisements or in any Client trademarks, logos, brands or other intellectual property used in or in association with the Advertisements.
4.1 At the end of each calendar month, Finder will issue to the Advertiser an invoice for the Commission earned during the preceding month.
4.2 The Client must pay the Commissions to Finder within 30 days following the issue of an invoice in accordance with this Clause 4.
4.3 The Client must pay the Commission by bank transfer (using such payment details as are notified by Finder to the Client from time to time) or by another method pre-approved by Finder.
4.4 If the Client does not pay any amount properly due to Finder under the Contract, Finder may charge the Client interest on the overdue amount at the rate of 8% per annum above the Bank of Canada cash base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
- Dispute Resolution
5.1 If a dispute arises under the Agreement, either party may at any time give written notice to the other requesting that a meeting take place to seek to resolve the dispute.
5.2 Nominated senior representatives of both parties must meet within five (5) business days of the notice and endeavour to resolve the dispute in good faith.
5.3 If such meeting does not take place or if after five (5) business days of the meeting the dispute remains unresolved, either party may pursue its rights at law.
- No Waiver
6.1 A waiver of any right, power or remedy under this agreement must be in writing signed by the part granting it. A waiver only affects the particular obligation or breach for which it is given. It is not an implied waiver of any other obligation or breach or an implied waiver of that obligation or breach on any other occasion.
6.2 The fact that a party fails to do, or delays in doing, something the party is entitled to do under this agreement, does not amount to a waiver.
7.1 No term or condition of this agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this agreement or that provision.
7.2 Neither party shall be deemed to be an agent of the other in connection with the exercise of any rights hereunder, and neither party shall have any power or authority to act for or to assume any obligation or responsibility on behalf of the other party, to bind the other party to any agreement, negotiate or enter into any binding relationship for or on behalf of the other party or pledge the credit of the other party except as specifically provided in this Agreement or by express written agreement between the parties.
7.3 If a clause or part of a clause of this Agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.
7.4 Each indemnity in this Agreement is a continuing obligation, separate and independent from the other obligations of the indemnifying party and survives termination of this Agreement.
7.5 Nothing in this Agreement is, or is intended to create any relationship of partner, joint venturer or employer/employee between the parties.
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