1. Performance Listings, managed through the Admarkt ad manager, are provided to you by Kijiji Canada Ltd., 500 King St. W., Suite 200, Toronto, Ontario M5V IL9. Before accessing Admarkt, you (“Seller”) must register at admarkt.kijiji.ca. We will assess this application and will provide Seller with an Admarkt account if Seller’s application is approved. Seller may not open multiple accounts without the prior written permission of Kijiji. Seller is solely responsible for maintaining the confidentiality of its username and password combination and shall be liable for any use of Admarkt through the username and password issued to Seller. Once Seller knows or has reason to suspect that its username and password may be known to unauthorized persons, it shall immediately communicate this to Kijiji, this, without limiting its own obligation to take immediate effective measures, such as for example changing the password.
2. In accordance with and subject to these Terms and Conditions (“Terms”), Seller will (through its use of Admarkt) cause the Seller Content (defined below) to be transferred to Kijiji for possible display on www.kijiji.ca (the “Kijiji Site”), including (at Kijiji’s sole discretion) the associated mobile website and through any application or websites used to access Kijiji’s online classifieds, in the form of Performance Listings (the “Listings”). The Listings may be listed on one (or more as determined by Kijiji in its discretion) of the Kijiji Site’s regional sites. The Listings will be posted in the appropriately selected category of the Kijiji Site (the “Prescribed Category”). The available categories, the possibilities for shaping the Listings, the space provided for the Seller Content and the position within the Prescribed Category are determined by what is offered through Admarkt and on the Kijiji Site at that moment. For purposes of these Terms, “Seller Content” means all data, information and content provided by Seller hereunder in whatever form, including, but not limited to, Seller’s store information, website information, product specifications, product descriptions, pricing, images and service marks.
3. CPC. When creating a Listing, Seller shall specify in Admarkt the cost per click (“CPC”) for the Listing which will be paid by Seller. Kijiji reserves the right to set minimum acceptable CPCs.
4. Budgets. Seller must set a budget (“Budget”). Seller will set the Budget in Admarkt on a per-Listing basis and an optional Daily Budget Cap, if applicable. The CPC on Clicks (as defined below) for each Listing will be charged to this Budget. In the event the Budget is reached, the placement of the Listing will be automatically paused (subject to the provisions below). If a Daily Budget Cap is reached, the placement of Listings will be automatically paused (subject to the provisions below) for the remainder of that day. Seller will be able to reactivate its Listing by increasing the Budget. We cannot guarantee that if the number of Clicks multiplied by the CPC exceeds the Budget or on any given day exceeds the Daily Budget Cap, the specific Listing will not be shown on the Kijiji Site that day. Seller acknowledges and agrees that Budgets may be exceeded by a maximum of ten percent (10%). At the request of Seller, we may, as a result of exceeding the Budget, credit the excess invoiced or paid to Seller or deduct the excess from the next invoice. For purposes of these Terms (and Admarkt generally), “Click” means a click, tap or swipe on, or through to, a Listing.
5. The Seller Content must be submitted in the format as may be described by Kijiji from time to time. We may make available to Seller certain tools, services and files to facilitate Seller’s provision of the Seller Content or Seller’s use of Admarkt; provided however that Seller is solely responsible for (and should verify) the Seller Content and, for greater certainty, the content of the related Listings. Seller shall ensure that the Seller Content is current, complete and accurate. We are not responsible for any errors in the Seller Content. Kijiji may re-format the Seller Content to be presentable for display as Listings, and may otherwise decode the Seller Content and make such changes thereto as may be necessary to conform and adapt the Seller Content to the technical requirements of the Kijiji Site, connecting networks, devices, services or media; provided however that the Seller Content shall not be edited or altered by Kijiji in a manner that misleads or distorts the original content.
6. Seller agrees that it will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access Seller’s account within Admarkt or to monitor or copy the Kijiji Site or the content contained therein, other than those automated means that are made available to Seller in Admarkt or are otherwise authorized in advance by us in writing.
8. We make no guarantees with respect to the frequency or position of the Listings, the placement of the Listings and/or the moment of placement of the Listings. For greater certainty, we specifically disclaim any warranty regarding the quantity, frequency, rank, location, placement and prominence of Seller Content anywhere on the Kijiji Site. The position of the Listings in the Prescribed Category is determined by our algorithm, in which several factors are taken into account; this includes, but is not limited to (i) the click-through rate (“CTR”) or CPC of the Listings, (ii) the quality and relevancy of the Seller Content, and (iii) the number and quality of the other classifieds listings in the same category. We are entitled to change the foregoing algorithm, the factors used therein and the weighting of those factors at any time. We are not obliged to disclose the algorithm and the weighting factors to Seller. Seller expressly acknowledges and agrees that depending on all of the relevant circumstances, including but not limited to Kijiji browse and search activity specific to your Listing category and region, it may occur that the Listings will be displayed less often than expected by Seller, or not at all.
9. Seller shall pay us for each Click on a Listing according to the CPC set for that Listing in Admarkt. The number of impressions, Clicks and CTR will solely be determined on the basis of the information in our systems (and we may decide to not charge for a Click if there is, in our sole determination, a clear presumption that the user that had realized the Click had no interest in the Listing in question (for example, in the case of Clicks by a botnet)). Seller shall be responsible for all costs associated with each Listing, even if the Listing has been placed as a result of Seller’s errors within Admarkt. In order to access and use Admarkt, Seller shall be required to sign up for pre-authorized credit card payments, and we also reserve the right to require payment in advance. We will invoice Seller by e-mail monthly with such invoice addressed to the email address Seller has provided. Unless Seller has prepaid, Seller agrees that each invoice shall be paid in accordance with the terms relating to Kijiji’s pre-authorized credit card payments (which terms are hereby incorporated by reference). Kijiji does not accept pre-paid credit cards. Seller will be responsible for payment of any applicable sales, use and other taxes (other than taxes based on our income), and will make all required payments to us free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to us will be Seller’s sole responsibility, and Seller will, upon our request, provide us with official receipts issued by the appropriate taxing authorities, or such other evidence as we may reasonably request, to establish that such taxes have been paid. Seller authorizes us to investigate Seller’s credit and financial standing by any reasonable means necessary, and Seller allows us to share Seller’s credit card and related billing and payment information with companies who work on our behalf for the purpose of credit checks.
10. Kijiji may provide reports to Seller with regard to the Listings (including the number of impressions and CTR) and thereby provide suggestions for improvement of the Seller Content. Kijiji makes no representations, warranties or guarantees regarding any such reports or suggestions made for improvement. At the request of Kijiji or on its own initiative, Seller may provide reports with regard to the conversions of the Listings. Kijiji may provide a non-binding indication of the expected results per day. Such an indication will be automatically generated based on past results and is provided for informational purposes only.
11. Seller hereby represents, warrants and covenants throughout the duration of its use of Admarkt that: (i) it has all necessary corporate power, authority and capacity to execute, deliver and perform its obligations, and its performance hereunder will not violate terms of any other agreement that it has with a third party; (ii) it will comply with any laws, regulations and ordinances applicable to it; (iii) it has secured all rights necessary to cause the transfer of the Seller Content, and to cause related Listings to be listed on the Kijiji Site; (iv) no intellectual property rights belonging to a third party will be infringed by the exercise of our rights hereunder in relation to using the Seller Content; and (v) the Seller Content shall be free from any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device. Seller will indemnify and hold harmless Kijiji, its affiliates and their respective officers, directors and employees against any and all claims, losses, liabilities, costs and expenses, which any of them may incur as a result of any third party claims or actions arising from or relating to the Seller Content or breach by Seller of any of the foregoing.
12. We may terminate Seller’s Admarkt account and this agreement at any time for any reason, by providing at least ten (10) days’ advance notice to Seller. Seller may pause or delete any or all of its Listings at any time. When Seller wishes to pause or delete a Listing, it will be able to do so in Admarkt. In addition, we may immediately suspend or terminate Seller’s Admarkt account if (i) Seller commits any act or does anything that is or shall be an offense which brings Kijiji into public disrepute, contempt, scandal, or ridicule, or which might reasonably tend to injure the reputation of Kijiji; (ii) we have reasonable evidence to believe that Seller’s credit is or becomes impaired; or (iii) we eliminate or suspend the Admarkt product for any reason. No termination shall affect the rights or obligations of either party with respect to provisions hereof that, by their sense and context, are intended to survive such termination.
13. Except as otherwise set forth in these Terms, each party will bear its own costs and expenses related to Admarkt.
14. Seller acknowledges that Admarkt and the Kijiji Site are provided “As Is”, and we do not represent or warrant that any of the foregoing will operate securely or without interruption or error.
15. TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) IN NO EVENT SHALL KIJIJI OR ITS AFFILIATES BE LIABLE TO SELLER OR ANY OTHER PERSON OR ENTITY FOR ANY LOST REVENUE, LOST PROFITS, LOST DATA OR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND, WHETHER OR NOT KIJIJI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) KIJIJI AND ITS AFFILIATES’ AGGREGATE LIABILITY IS LIMITED TO AMOUNTS PAID BY SELLER HEREUNDER IN THE THREE MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY TO ALL CLAIMS AND CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS OR STATUTORY CAUSES OF ACTION.
16. Seller’s acceptance of these Terms has not been induced by, nor do any of the parties rely upon or regard as material, any representations or writings whatsoever not expressly incorporated herein.
17. We may, at any time and at our option, assign or transfer this agreement to any of our affiliates, or sub-contract to an affiliate any or all of its obligations hereunder, without prior consent from Seller.
18. We may update this agreement at any time, with updates taking effect when you next use Admarkt or after 30 days, whichever is sooner. No other amendment to this agreement will be effective unless made in writing, signed by Seller and us.
19. These Terms shall be construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each of the parties hereby irrevocably attorns to the jurisdiction of the courts of the Province of Ontario with respect to any matters arising out of Admarkt.
Last Modified: December 19th, 2019
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