Additional Terms of Service and Privacy Policies
HOME DEPOT POWERED BY VANTAGE PLATFORM
END USER LICENSE AGREEMENT
Effective: August 1, 2021
THIS LICENSE AGREEMENT (“LICENSE AGREEMENT”) TOGETHER WITH THE TERMS AND CONDITIONS IN ANY APPLICABLE SUPPLIER BUYING AGREEMENT OR OTHER AGREEMENT (COLLECTIVELY, THE “AGREEMENTS”) BETWEEN SUPPLIER (“SUPPLIER” OR “YOU”) AND HOME DEPOT OF CANADA INC. (“HOME DEPOT”/“WE”/”US”) SETS OUT THE TERMS ON WHICH HOME DEPOT GRANTS ACCESS TO THE HOME DEPOT POWERED BY VANTAGE PLATFORM (THE “PLATFORM”) WHICH ENABLES ANALYTICS AND THE PURCHASE OF ADVERTISEMENTS AND THE CREATION AND PROMOTION OF AD CAMPAIGNS (‘COLLECTIVELY THE ‘SERVICES”). ALL SUPPLIER OBLIGATIONS UNDER THESE TERMS ARE IN ADDITION TO, AND NOT IN LIMITATION OF, ANY OBLIGATIONS CONTAINED IN THE AGREEMENTS. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY SUBMITTING A REQUEST THROUGH THE PLATFORM, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS LICENSE AGREEMENT IS AUTHORIZED TO ACCEPT THIS LICENSE AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS LICENSE AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN YOU MAY NOT USE THE SERVICES.
- License Grant. Subject to the terms of this License Agreement and the Agreements, Home Depot hereby grants Supplier a revocable, nonexclusive, nontransferable, limited license to use the Platform to buy advertising on Facebook, Instagram, Google, and other internet properties (each a “Campaign”). The Platform is web-based and can be accessed through most commonly used web browsers; you will find that your experience is optimized when using the most current version of Chrome.
- Rights and Responsibilities. To register for the Platform, accounts will be created upon request. Home Depot is not liable for transactions executed by the Platform as a result of errors made in entering information into the Platform by or for Supplier (for example, incorrectly entering targeting or budgeting information).
In consideration of the Services, Supplier agrees that Home Depot will have a non-exclusive, royalty-free and perpetual license and right to use the Results from any Campaign for the purpose of: i) improving and optimizing the Services and; ii) creating and publishing analytics and anonymized case studies. As used herein ‘Results” means analytics on the success of a Campaign measured by reference to factors including but not limited to the total number of participants in a Campaign and conversion rates attributable to a Campaign, website-hits, number of events driven by promotional news, samples, offers or other marketing materials from Supplier.
- Participation; Compliance. Supplier acknowledges and agrees that access to and use of the Platform and Services is discretionary and voluntary and based solely upon Supplier’s evaluation of its own advertising/promotion needs and strategies and subject to Supplier’s knowledge of and compliance with applicable laws in the access and use of the same. Home Depot shall have the right to refuse or immediately pause, remove, or cancel the Supplier Campaign(s), or terminate this License Agreement, if Home Depot deems any content or Campaign to be unlawful or otherwise objectionable.
- Fees and Payment Terms. Supplier will be invoiced on a monthly basis for all clicks and/or impressions purchased on the Platform, depending on the placement. All charges shall be based on the Platform’s reporting and denominated in Canadian dollars. Home Depot will deduct payment from any amounts due to Supplier in a monthly billing cycle. In the event that Home Depot owes Supplier less than the payment due to Home Depot pursuant to this License Agreement, Home Depot shall have the option to separately invoice the Supplier for the payment due pursuant to this License Agreement. Any late payment shall be subject to 1.5% interest per month, or highest rate permitted by law. Home Depot may change its fees and payment policies for the Services from time to time. The changes will be posted at https://gotvantage.com/additional-privacy-policies/
- Term and Termination. Unless otherwise terminated, this License Agreement will remain in full force and effect while Supplier uses the Services (“Term”), unless terminated earlier by Home Depot. Home Depot will have the right to terminate this License Agreement or suspend or terminate the operation of the Portal without liability to you or any third party at any time and to cancel any Campaign for breaches or violations of this License Agreement including, without limitation, non-payment of any fees owed in connection with your use of the Services) or requests by law enforcement. Any termination of this License Agreement by Home Depot shall be in addition to any and all other rights and remedies that Home Depot may have.
- Representations and Warranties. Supplier represents and warrants that: (a) any content delivered by or on behalf of Supplier for use on the Platform does not and will not infringe upon any third party intellectual property or proprietary right; (b) its advertising claims for its products used in connection with this License Agreement shall not be false or misleading and shall be in compliance with all applicable law; (c) that it has in its possession adequate and sufficient data to establish the truthfulness of any and all advertising and labeling claims and that past usage of the same or similar claims has occurred without any objections, complaints, investigations or lawsuits.
- Security Requirements. Supplier will have or promptly create internal security policies that, at a minimum, comply with the Agreements industry best practices and standards and protect the integrity of the Portal. The Portal must at all times be protected from unauthorized access, theft, misuse, accidental or unauthorized
modification, disclosure, transfer or destruction. The Supplier will manage access to the Portal by granting and removing individual user access, and working with Home Depot to resolve any Portal-related issues that may arise. Supplier is solely responsible for obtaining at its sole cost the hardware and software necessary to properly access the Portal.
If Supplier discovers or is notified of a breach or a potential breach of security relating to the Portal, any data or information contained therein, including derivatives thereof (“Portal Information”), or breach any Agreements or applicable law (collectively a “Breach”), Supplier will (i) immediately notify Home Depot of such Breach and (ii) if the applicable Portal Information was in the possession of Supplier at the time of such Breach, Supplier, with Home Depot’s consent, shall (a) investigate and use its commercially reasonable efforts to mitigate the effects of the Breach and (b) provide Home Depot with assurance reasonably satisfactory to Home Depot that such Breach will not recur. For purposes of clarification, a Breach shall include, but not be limited to: (x) any unauthorized access to the Portal; (y) any unauthorized access to or acquisition of Portal Information; or (z) loss or compromise of a User ID and/or password used to access the Portal. No independent action to correct a Breach should be taken unless failure to immediately respond will result in irreparable harm to Supplier or Home Depot.
Supplier will not introduce any viruses, time or logic bombs, Trojan horses, worms, timers, clocks, trap doors, malicious code, or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down the Portal or any component of the Portal, including, without limitation, its security or data (collectively, a (“Virus”). In the event a Virus or similar item is found to have been introduced into the Portal by or through Supplier, Supplier will, at its sole cost and expense: (i) use commercially reasonable efforts to reduce or eliminate the effects of the Virus or similar item; and (ii) if the Virus or similar item causes a loss of operational efficiency or loss of data, mitigate, restore and reimburse Home Depot for such losses. If Supplier discovers a Virus or similar item that may affect the
Portal, Supplier must report it immediately to Home Depot.
Except as otherwise expressly provided herein, Home Depot and/or the licensor of the Portal retains all right, title and interest in and to the Portal and the Portal Information. Upon Home Depot’s request, Supplier will promptly return to Home Depot all tangible items containing any Portal Information, including all copies, abstractions and compilations thereof. Supplier will certify in writing that it has fulfilled these obligations.
- Supplier shall indemnify, defend and hold harmless Home Depot, its parent, subsidiaries affiliates and agents from any and all liabilities, damages, claims, suits, judgments, costs and expense (including reasonable attorneys’ fees), directly or indirectly incurred, as a result of (a) the actions of Supplier relating to this License Agreement and the actions contemplated herein; (b) the breach by Supplier of any of Supplier’s representations and warranties or any other provision herein, including but not limited to patent, trademark, copyright or other intellectual property infringement in connection with the Supplier’s Campaign; or (c) any claims or allegations by third parties or government agencies arising out of or in connection with any alleged breach of the provisions of this License Agreement or failure to comply with applicable law. Supplier will immediately notify Home Depot of any material violation of these terms by anyone gaining access to the Portal (regardless of whether such access is authorized or unauthorized) by or through Supplier or its Users. Upon request, Supplier shall promptly provide Home Depot with a list of all individuals who have accessed the Portal through Supplier.
- Supplier acknowledges that access to the Platform may give Supplier access to confidential, proprietary, and trade secret information of Home Depot (“Confidential Information”), which shall include all material and reports prepared for Home Depot , all information in any form or medium that is disclosed or learned by Supplier that relates to the business, marketing, products, services, research or development of Home Depot or its suppliers, distributors, agents, representatives, employees or customers. Supplier agrees that it will keep all Confidential Information in strict confidence and not disclose or use the Confidential Information other than to fulfill its obligations to Home Depot for as long as such information is protected under law. Any trade secret information of Home Depot shall be protected for as long as it is considered a trade secret. Supplier shall safeguard all Confidential Information using the same reasonable degree of care with which it protects its own confidential information. Supplier shall strictly limit access to any Confidential Information to its authorized employees, agents, subcontractors, and any other third-party that accesses the Platform through Supplier (“Users”) on a need-to-know basis and who are under a contractual obligation to maintain the confidentiality of such information. Supplier shall be liable for any breach or alleged breach of the confidentiality obligations of its Users. If Supplier receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information, Supplier must promptly notify Home Depot prior to any disclosure of Confidential Information and cooperate in maintaining the confidentiality of the information to the extent possible.
- Disclaimers; Limitations of Liability. THE SERVICES INCLUDING ANY DELIVERABLES OR INVENTORY DELIVERED BY HOME DEPOT SUCH AS IMPRESSIONS, CLICKS ARE PROVIDED ‘AS IS’ AND MAY VARY AND SPECIFIC RESULTS FROM USE OF THE SERVICES SUCH AS CUSTOMER CONVERSIONS ARE NOT GUARANTEED. HOME DEPOT SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. HOME DEPOT MAKES NO PROMISE REGARDING THE RESULTS SUPPLIER WILL OBTAIN THROUGH THE USE OF THE SERVICE. HOME DEPOT MAKES NO REPRESENTATION ABOUT THE SUITABILITY OF THE PORTAL FOR ANY PURPOSE. ACCESS TO THE PORTAL IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OFANY KIND, EXPRESS OR IMPLIED. HOME DEPOT SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OFMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND – NONINFRINGEMENT.HOME DEPOT SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE PORTAL, FOR SUPPLIER’S ACTION OR INACTION IN CONNECTION WITH THE PORTAL OR FOR ANY DAMAGE TO SUPPLIER’S COMPUTER OR DATA OR ANY OTHER DAMAGE SUPPLIER MAY INCUR IN CONNECTION WITH THE USE OF THE PORTAL. SUPPLIER’S USE OF THE PORTAL IS AT SUPPLIER’S OWN RISK. IN NO EVENT SHALL HOME DEPOT, ITS PARENT, SUBSIDIARIES AFFILIATES OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL PUNITIVE OR NON-CONTRACTUAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS LICENSE AGREEMENT OR ANY PARTICULAR CAMPAIGN, INCLUDING WITHOUT LIMITATION, THE PERFORMANCE OR BREACH THEREOF.
- Trademark. The trademarks, service marks and logos (collectively, “Trademark(s)”) used and displayed on the Portal are registered and unregistered Trademarks of Home Depot and others. Nothing on the Portal should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark displayed on the Portal, without the prior written permission of the Trademark owner. Home Depot aggressively enforces its intellectual property rights to the fullest extent of the law. The name of Home Depot, the Home Depot logo or the other Home Depot formatives may not be used in any way, including in advertising or publicity pertaining to distribution of materials on the Portal, without prior, written permission from Home Depot. Home Depot prohibits use of the Home Depot logo as part of a link to or from any website unless establishment of such a link is approved in advance by Home Depot in writing. Fair use of Home Depot’s Trademarks requires proper acknowledgment. Other product and company names mentioned in the Portal may be the Trademarks of their respective owners.
- Force Majeure. Home Depot will not be liable for any delay or failure to perform as required by this License Agreement as a result of any cause or condition beyond Home Depot’s reasonable control.
- Governing Law; General. This License Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario. Any dispute regarding this License Agreement shall be brought exclusively in the courts of the Province of Ontario. Failure by Home Depot to enforce a right under these terms shall not constitute a continuing waiver of such right, or a waiver of any other right under these terms or the Agreements. The invalidity of any provision of these terms shall not affect the validity or enforceability of any other provision.
- Except as specifically permitted herein, this License Agreement may not be assigned by Supplier without the consent of Home Depot. Any assignment without such consent shall be void.
- Updates to License Agreement. We reserve the right to update or modify this License Agreement from time to time without notice and Supplier’s continued use of the Portal will constitute acceptance of any revised terms. If any provision of this License Agreement is deemed invalid or illegal, it shall be modified to be valid and legal and that all other provisions shall remain in full force and effect.
- Contact/Questions. If you have any questions about this License Agreement, or if you wish to receive any additional information, provide feedback or raise any concerns, please contact us at Support@HDRetailMedia.com