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 VENDOR BUYING AGREEMENT OR OTHER AGREEMENT (COLLECTIVELY, THE “AGREEMENTS”) BETWEEN VENDOR (“VENDOR” 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 VENDOR 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 Vendor 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 Vendor (for example, incorrectly entering targeting or budgeting information).
In consideration of the Services, Vendor 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 Vendor.

Participation; Compliance. Vendor acknowledges and agrees that access to and use of the Platform and Services is discretionary and voluntary and based solely upon Vendor’s evaluation of its own advertising/promotion needs and strategies and subject to Vendor’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 Vendor Campaign(s), or terminate this License Agreement, if Home Depot deems any content or Campaign to be unlawful or otherwise objectionable.

Fees and Payment. Vendors will be invoiced monthly 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. Selfserve vendors will be responsible for ensuring all $ amount entered campaign budget section is accurate. Any spend on platform generated by self-serve vendor will be deducted through monthly billing cycle. The Home Depot will deduct payment from any amounts due to Vendor in a monthly billing cycle. If The Home Depot owes Vendor less than the payment due to The Home Depot pursuant to this Agreement, The Home Depot shall have the option to separately invoice the Vendor for the payment due pursuant to this Agreement. If Vendor does not have an account with The Home Depot, the Vendor may arrange for payment with the Home Depot team directly at OAM_CA <OAM_CA@homedepot.com> Vendor acknowledges and agrees that, in certain instances, the total cost of the campaign on the Platform may exceed the price quoted by a small amount, due to the variance in traffic and clicks each day. The Home Depot shall have the right to immediately remove the Vendor placement or terminate this Agreement and remove any Vendor placement if payment is not received. Any late payment shall be subject to 1.5% interest per month, or the highest rate permitted by law. The Home Depot may change its fees and payment policies for the Platform 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 Vendor 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. Vendor represents and warrants that: (a) any content delivered by or on behalf of Vendor 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. Vendor 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 Vendor 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. Vendor is solely responsible for obtaining at its sole cost the hardware and software necessary to properly access the Portal.

If Vendor 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”), Vendor will (i) immediately notify Home Depot of such Breach and (ii) if the applicable Portal Information was in the possession of Vendor at the time of such Breach, Vendor, 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 Vendor or Home Depot.

Vendor 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 Vendor, Vendor 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 Vendor discovers a Virus or similar item that may affect the Portal, Vendor 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, Vendor will promptly return to Home Depot all tangible items containing any Portal Information, including all copies, abstractions and compilations thereof. Vendor will certify in writing that it has fulfilled these obligations.

Vendor 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 Vendor relating to this License Agreement and the actions contemplated herein; (b) the breach by Vendor of any of Vendor’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 Vendor’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. Vendor 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 Vendor or its Users. Upon request, Vendor shall promptly provide Home Depot with a list of all individuals who have accessed the Portal through Vendor.

Vendor acknowledges that access to the Platform may give Vendor 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 Vendor that relates to the business, marketing, products, services, research or development of Home Depot or its Vendors, distributors, agents, representatives, employees or customers. Vendor 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. Vendor shall safeguard all Confidential Information using the same reasonable degree of care with which it protects its own confidential information. Vendor shall strictly limit access to any Confidential Information to its authorized employees, agents, subcontractors, and any other third-party that accesses the Platform through Vendor (“Users”) on a need-to-know basis and who are under a contractual obligation to maintain the confidentiality of such information. Vendor shall be liable for any breach or alleged breach of the confidentiality obligations of its Users. If Vendor receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information, Vendor 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 VENDOR 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 OF MERCHANTABILITY, 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 VENDOR’S ACTION OR INACTION IN CONNECTION WITH THE PORTAL OR FOR ANY DAMAGE TO VENDOR’S COMPUTER OR DATA OR ANY OTHER DAMAGE VENDOR MAY INCUR IN CONNECTION WITH THE USE OF THE PORTAL. VENDOR’S USE OF THE PORTAL IS AT VENDOR’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 Vendor 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 Vendor’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.

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