LAST UPDATED: MAY 1, 2017
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS IN FULL AND VERY CAREFULLY PRIOR TO REGISTERING AS A PUBLISHER OF CLICKNERD. YOUR AGREEMENT TO THESE TERMS CREATES A LEGAL BINDING AND ENFORCEABLE CONTRACT BETWEEN YOU AND CLICKNERD. IF YOU REGISTER FOR THE CLICKNERD PROGRAM OR PARTICIPATE IN THE CLICKNERD PROGRAM YOU ARE AFFIRMATIVELY STATING AND AGREEING THAT YOU ARE IN AGREEMENT WITH THESE TERMS AND CONDITIONS AND FULLY ACCEPT THE COVENANTS, REPRESENTATIONS, WARRANTIES, AND TERMS CONTAINED HEREIN.
This Agreement (the “AGREEMENT”) is entered into by and between You and CLICKNERD an RTB LOGIC (BARBADOS) LTD COMPANY (“CLICKNERD”). This AGREEMENT shall govern the CLICKNERD Network and the CLICKNERD Advertising Program (the “PROGRAM”) and Your use, agreement, and relationship with CLICKNERD, and the PROGRAM. The AGREEMENT consists of the CLICKNERD Standard Terms and Conditions (the “TERMS”), and the CLICKNERD Compliance Policies and Guidelines that can be located at https://clicknerd.com/faq. “You”, “Your”, or “Publisher” shall be defined as any person or entity identified in the registration and application process (or listed at the time of enrollment), as submitted by the same person, entity, affiliated persons, and/or any agency, representative, or network acting on behalf of such person or entity, such being bound by this Agreement.
Subject to this AGREEMENT, the TERMS, and any and all rules, regulations, policies, or procedures that are developed, modified, or enacted by CLICKNERD from time to time, CLICKNERD hereby grants you the limited and revocable right of use, access, and participation in the PROGRAM. The PROGRAM gives users the ability to participate as a Publisher (website owner), Publishers distribute and/or list articles, advertisements, campaigns, offers, and/or promotional materials on their site. Participation in the PROGRAM as an Publisher is at your own risk.
CLICKNERD will provide You with certain specifications, rules, and regulations to be followed and adhered to at all times. CLICKNERD may in its sole and absolute discretion amend, modify, or change the specifications, rules, and regulations. Specifications may change to allow for network enhancements, including, but not limited to, code changes, delivery improvements, and optimization of displays, tracking, and reporting of ARTICLES. You shall not alter the code, link, script, programming, pixel, ARTICLE, content, and/or data provided to You by CLICKNERD without the prior express written consent of CLICKNERD.
4. PUBLISHER DUTIES.
You are solely responsible for Your Website(s) and/or Property(ies), including all content and materials, maintenance and operation thereof, the proper implementation of CLICKNERD specifications, and adherence to the terms of this AGREEMENT, all applicable laws, rules, regulations, statutes, and ordinances, and any CLICKNERD rule, policy, or procedure. You hereby grant CLICKNERD the sole and exclusive right to investigate, at its own discretion, any violation, activity, or alleged breach of this AGREEMENT, or any engagement in any activity prohibited by this AGREEMENT. CLICKNERD shall not be liable or responsible for anything related to You or Your Websites, including, but not limited to, the receipt and/or collection of data, information, or queries from end users of Your Websites, or the transmission of any information or data between You, Your Website, and CLICKNERD. In addition, all ARTICLES are provided on an “AS IS” or “AS AVAILABLE” basis and CLICKNERD makes no warranty or representation that such ARTICLES will be available, delivered, or work properly. CLICKNERD is not required to notify You of any problems or issues relating to the CLICKNERD Network, the PROGRAM, or the ARTICLES.
Approved Publishers shall be permitted to participate in the PROGRAM and receive served ARTICLES from CLICKNERD for publication on Publisher’s Website(s) and/or Property(ies). CLICKNERD will specify the amount and terms under which You will earn payment (“EARNING”). EARNING are generated from a specified transaction (“ACTIONS”) as defined by CLICKNERD. ACTIONS can include, without limitation, clicks, sales, registrations, impressions and leads. The applicable Action associated with each campaign and/or Your account shall be set forth in the applicable terms listed on the CLICKNERD Network and, unless otherwise specified, such shall be subject to change at the sole and absolute discretion of CLICKNERD. If You accept Articles to run on your Website(s), You agree to adhere to any specific policies, procedures, and specifications associated with those Articles, and operate at all times in accordance with the AGREEMENT. CLICKNERD may, at its sole discretion, change the Articles or the terms of a campaign at any time, without prior notice to You, unless otherwise specified. Similarly, You may cease participation in the PROGRAM at any time, unless otherwise specified in this AGREEMENT or other terms associated with the campaign. CLICKNERD is responsible for displaying and administrating the PROGRAM and tracking associated Bounties and Actions. Program data compiled by CLICKNERD including, but not limited to, numbers and calculations regarding Actions and associated Bounties (“Program Data”), will be calculated by CLICKNERD through the use of tracking technology and shall be final and binding on You. Any questions regarding the Program Data must be submitted in writing seven (7) days of initial appearance in the tracking system; otherwise the Program Data will be deemed to be accurate and accepted by You. Publisher understands and agrees that on occasion the Service and/or CLICKNERD Network may be inaccessible, unavailable or inoperable for any reason, including, but not limited to, the following: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the control of CLICKNERD or which are not reasonably foreseeable by CLICKNERD including, but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures. Publisher acknowledges and agrees that CLICKNERD has no control over the availability of the PROGRAM, Services, and CLICKNERD Network on a continuous or uninterrupted basis. Terms of the AGREEMENT are subject to CLICKNERD hardware, software, and bandwidth traffic limitations. CLICKNERD’s failure to deliver because of technical difficulties does not represent a failure to meet the obligations of the AGREEMENT.
6. TERMS OF PAYMENT.
You agree to be paid the applicable EARNING rate for each ACTIONS verified by CLICKNERD as specified by CLICKNERD approximately thirty (30) days after the last day of a given calendar month, for Bounties realized in that month, subject to a reduction based on CLICKNERD’s expenses associated with the delivery of any traffic to advertisers which would have otherwise been blocked by ad block software. You agree that payment for EARNING will be owed to You from the applicable Advertiser, and that corresponding payments shall be made by CLICKNERD to You out of the funds actually collected by CLICKNERD from the applicable Advertiser. CLICKNERD shall have no payment obligation to Publisher where Advertiser has not remitted sufficient payments to cover the EARNING otherwise due and owing Publisher. All Publisher accounts will be paid in United States dollars (“USD”). Notwithstanding anything contained herein to the contrary, no Bounty payments will be issued for any amounts otherwise due Publisher that total less than Twenty Five Dollars ($25.00) (“PAYMENT THRESHOLD”). Upon termination of the AGREEMENT, all legitimate moneys due to Publisher that are actually collected from the applicable Advertiser, even amounts below the PAYMENT THRESHOLD, will be paid during the next billing cycle. All payments due hereunder shall be in USD and are exclusive of any applicable taxes. Publisher is responsible for all applicable taxes with respect to Payments received from CLICKNERD.
An Advertiser may request that CLICKNERD, or CLICKNERD may on its own initiative, debit from the EARNING otherwise due and owing Publisher an amount equal to a Bounty previously credited to Publisher’s account where: (a) a return or cancellation has been made with respect to the applicable product and/or service; (b) there is an instance of a duplicate, fraudulent or incomplete entry or other similar error with respect to a customer order; (c) there are ACTIONS that do not comply fully with the terms of the AGREEMENT, including where the applicable non-complying ACTIONS is not the result of Publisher’s action, omission and/or failure to comply with the terms and conditions of the AGREEMENT; (d) there is non-receipt of payment from, or refund of payment to, the customer that entered into the subject Action; or (e) there is any failure on the part of Publisher to comply with the AGREEMENT and/or the applicable Program Terms (collectively referred to as a “Chargeback”). Chargebacks requested by an Advertiser in accordance with this Section may be applied up to one hundred and twenty (120) days after the end of the month in which the applicable Bounty was earned (“Chargeback Period”). An Advertiser may request that the payment of a Bounty be postponed for one (1) payment cycle where: (i) Advertiser is verifying a lead (for Programs in which lead generation is a component of the ACTIONS); (ii) Advertiser has a product return policy that allows the underlying purchaser to return the product during the Chargeback Period; or (iii) the applicable Program Terms provide for such a postponement. The number or amount of ACTIONS, credits for payments and debits for Chargebacks, as calculated by CLICKNERD, shall be final and binding on Publisher. The parties expressly acknowledge, confirm, and agree that, at all times during Your participation in the PROGRAM, CLICKNERD specifically reserves the right to determine whether purported impressions and/or other Actions are in fact valid and give rise to CLICKNERD payment obligations pursuant to these Terms and Conditions and the terms of any applicable Insertion Order(s). This determination shall be made at CLICKNERD’s sole and absolute discretion, and may be made in consideration of the geographic location of users or any other factors deemed relevant by CLICKNERD in making such determination. Definition of Revenue for Revenue Share Arrangements: In the event the parties agree to a revenue share arrangement, CLICKNERD will pay you a revenue share based on “Net Revenue” which is defined as the gross revenue received by CLICKNERD as a result of valid clicks, less adjustments for chargebacks, commissions, direct cost charged to CLICKNERD by third party providers, discounts allowed, refunds and administrative fees, and bad debt deductions.
CLICKNERD actively monitors traffic, ACTIONS, EARNING and other Program-related activities for potential fraud. If CLICKNERD suspects that Your account has been used in a fraudulent manner, Your account will be deactivated effective immediately and with no notice to You pending further investigation. If You add ACTIONS, or inflate ACTIONS, through the use of fraudulent means of traffic generation, as determined solely by CLICKNERD, You will forfeit all of the EARNING related to that PROGRAM, and Your Publisher account will be terminated effective immediately. CLICKNERD reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the OBLIGATION of Publisher to prove to CLICKNERD that it has NOT engaged in fraud. CLICKNERD will hold Your EARNING-related payments in ‘Pending Status’ until You have satisfactorily provided evidence that demonstrates to CLICKNERD that You have not engaged in fraud. If You are unable to provide CLICKNERD with satisfactory evidence that You have not engaged in fraud within seven (7) days of Your EARNING being placed in “Pending Status,” then CLICKNERD reserves the right to terminate Your Publisher account and cancel payment on the applicable EARNING, at its sole discretion and without any further obligations to You.
The AGREEMENT may be terminated by either Party upon three (3) days’ prior written notice. In addition, CLICKNERD reserves the right, in its sole and absolute discretion, to terminate You from the PROGRAM at any time for any reason, without notice to You. CLICKNERD also reserves the right to terminate Your access to the CLICKNERD Network at any time with or without notice to You. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, Publisher agrees to immediately remove from its Website(s) and/or Property(ies) any and all ARTICLES, content, materials, and CLICKNERD Code or other intellectual property made available to Publisher in connection with its performance under the AGREEMENT. The representations, warranties and obligations of Publisher contained within the AGREEMENT shall survive and remain in full force and effect after termination of the AGREEMENT. All payment obligations accruing prior to the date of termination shall survive until fully fulfilled.
Publisher hereby represents and warrants that it: (a) has read CLICKNERD’s policies and guidelines, as same are made available at http://clicknerd.com/faq ; (b) will regularly check the clicknerd.com website and the CLICKNERD Network for updates; and (c) shall comply with any and all such policies and guidelines, as well as updates to same. Publisher’s failure to comply with the aforementioned policies and guidelines will be considered a breach of the AGREEMENT and may result in the immediate termination of the AGREEMENT by CLICKNERD.
10. PROMOTIONAL USE.
CLICKNERD may, from time to time, use Your name and logo in presentations, marketing materials, customer lists, financial reports, Web site listings of customers, and search results. You may request in writing to use CLICKNERD’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, but at no time shall You use such trade names, marks, and/or identifying information without the prior express written consent of CLICKNERD.
11. REPRESENTATIONS AND WARRANTIES.
You represent and warrant that (a) all of the information provided by You to CLICKNERD to enroll in the PROGRAM true, accurate, correct, and current; (b) You hereby certify under oath that you are the owner of each Website and/or Property or that You are legally authorized to act on behalf of the owner of such Website and/or Property for the purposes of this AGREEMENT and the PROGRAM; (c) You have all necessary right, power, and authority to enter into this AGREEMENT and to perform the acts required of You hereunder; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. In addition, to the extent that Your Site is a media player (1) You represent and warrant that You have a valid license to use and distribute such media player (including all content therein, including without limitation any Articles) for the purposes of this AGREEMENT and the PROGRAM; and (2) You shall ensure that any media player(s) shall comply with the terms and conditions set forth herein. You further represent and warrant that each Property and any material displayed therein: (i) comply with all applicable laws, statutes, ordinances, and regulations; (ii) do not breach and have not breached any duty toward or rights of any person or entity including, without limitation, rights of intellectual property, publicity or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) are not pornographic, hate-related or otherwise violent in content.
You shall indemnify, defend and hold CLICKNERD, its agents, advertisers, affiliates, subsidiaries, directors, officers, employees, and applicable third parties (e.g. relevant advertisers, syndication partners, licensors, licensees, consultants and contractors) (collectively “Indemnified Person(s)”) harmless from and against any and all third party claims, liability, loss, demand for payment, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Your use of the PROGRAM, the Property(ies), and/or Your breach of any term of this AGREEMENT.
13. CLICKNERD RIGHTS.
CLICKNERD owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the PROGRAM (including CLICKNERD’s ad serving technology, search technology, referral technology, marketing technology, marketing strategies, code, programming, strategies, and features, including implied licenses, and excluding items licensed by CLICKNERD from third parties and excluding any third party media player that may comprise the Property), and that You will not acquire any right, title, or interest in or to the PROGRAM except as expressly set forth in this AGREEMENT. You will not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any CLICKNERD services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the PROGRAM or proprietary information related thereto. You will not remove, obscure, or alter CLICKNERD’s copyright notice, features, trademarks, symbols, or other proprietary rights notices affixed to or contained within any CLICKNERD services, software, or documentation (including without limitation the display of any CLICKNERD or third party Articles). “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trademark law, international treaty, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
14. INFORMATION AND DATA COLLECTION.
15. DISCLAIMER AND LIMITATION OF LIABILITY.
IN NO EVENT SHALL CLICKNERD BE LIABLE TO YOU OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CUSTOMERS OBTAINED THROUGH YOUR MARKETING EFFORTS) FOR ANY DAMAGES OF ANY KIND ARISING FROM YOUR USE OF THE CLICKNERD NETWORK, THE PROGRAM, THE ARTICLES, ADVERTISERS’ UNDERLYING PRODUCTS AND/OR SERVICES OR YOUR DISPLAY OF ANY CONTENT ON OR THROUGH YOUR PUBLISHER WEBSITE(S) AND/OR PROPERTY(IES) INCLUDING, BUT NOT LIMITED TO, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE AND/OR CONSEQUENTIAL DAMAGES, EVEN IF CLICKNERD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLICKNERD’S MAXIMUM AGGREGATE LIABILITY TO PUBLISHER AND ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE TWO HUNDRED FIFTY DOLLARS ($250). PUBLISHER AND CLICKNERD SPECIFICALLY STATE AND AGREE THAT THE FOREGOING DAMAGES LIMITATION IS REASONABLE AND ENFORCEABLE. REGARDLESS OF ANY LAW TO THE CONTRARY, PUBLISHER SHALL HAVE NO RIGHT OF ACTION, AND WAIVES ITS RIGHT TO BRING A SUIT, CLAIM, OR PROCEEDING AGAINST CLICKNERD MORE THAN ONE (1) YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE. PUBLISHER RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE. THE CLICKNERD NETWORK, CREATIVES, CONTENT, CODE, SCRIPT, PROGRAMS, THE ARTICLES, ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES, CONTENT AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE CLICKNERD NETWORK, CREATIVES, THE PROGRAM, CODE, SCRIPT, THE ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. CLICKNERD HAS NO LIABILITY, WHATSOEVER, TO PUBLISHER OR ANY THIRD PARTY, FOR PUBLISHER’S USE OF, OR INABILITY TO USE, THE CLICKNERD NETWORK, CREATIVES, CONTENT, THE PROGRAM, THE ARTICLES, AND/OR THE SERVICE AND DELIVERY OF THE ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS OR SERVICES AND CLICKNERD DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT PUBLISHER’S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY THE PROGRAM OR ANY OF THE ARTICLES WILL BE AVAILABLE TO PUBLISHER. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN CLICKNERD AND PUBLISHER. THE CLICKNERD NETWORK, CREATIVES, CONTENT, THE PROGRAM, THE ARTICLES, THE SERVICE AND DELIVERY OF ARTICLES, AND/OR ADVERTISERS’ UNDERLYING PRODUCTS AND SERVICES WOULD NOT BE PROVIDED TO PUBLISHER WITHOUT SUCH LIMITATIONS. CLICKNERD MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE CLICKNERD NETWORK, CREATIVES, CONTENT, AND/OR THE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY PUBLISHER FROM CLICKNERD AND/OR ANY ADVERTISER BY AND THROUGH THE CLICKNERD NETWORK, CREATIVES, CONTENT, AND/OR THE PROGRAM SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THE AGREEMENT.
CLICKNERD may assign the AGREEMENT, or any portion thereof, at its sole discretion. You may not assign, transfer or delegate any of Your rights under the AGREEMENT without the prior written consent of CLICKNERD, which may be withheld for any reason, and any attempts to do so shall be null and void. Further, any such attempts may result in CLICKNERD, at its sole discretion, immediately terminating the AGREEMENT and/or Your participation in any PROGRAM, without any liability to CLICKNERD. The AGREEMENT will be binding on, inure to the benefit of and be enforceable against, the Parties’ successors and assigns.
17. SEVERABILITY WAIVER.
If any provision of the AGREEMENT is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not affect any other provisions of the AGREEMENT, and the AGREEMENT shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein. No waiver of any breach of any provision of the AGREEMENT shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
The AGREEMENT represents the complete and entire expression of the AGREEMENT between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties. Other than as set forth herein, the AGREEMENT may be amended only by a written agreement executed by an authorized representative of each Party. To the extent that anything in or associated with the CLICKNERD Network, the PROGRAM, or the terms are in conflict or inconsistent with the AGREEMENT, the AGREEMENT shall take precedence.
“Confidential Information” means any information disclosed to You by CLICKNERD, either directly or indirectly, in writing, orally or by inspection of tangible objects, other than information that You can establish: (a) was publicly known and made generally available in the public domain prior to the time of disclosure to You by CLICKNERD; (b) becomes publicly known and made generally available after disclosure to You by CLICKNERD other than through Your action or inaction; and/or (c) is in Your possession, without confidentiality restrictions, at the time of disclosure by CLICKNERD as shown by Your files and records prior to the time of disclosure. CLICKNERD’s PROGRAM rates are considered “Confidential Information.” You shall not at any time: (i) disclose, sell, license, transfer or otherwise make available to any person or entity any Confidential Information; (ii) use any Confidential information; and/or (iii) reproduce or otherwise copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to You or as required by applicable law. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. All Confidential Information shall at all times remain CLICKNERD’s personal property and all documents, electronic media and other tangible items containing or relating to any Confidential Information shall be delivered to CLICKNERD immediately upon CLICKNERD’s request.
20. FORCE MAJEURE.
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet or network failure or interruption, results of computer hacking, Acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of such Party.
You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the ARTICLES, delivery system, CLICKNERD Network, and/or the PROGRAM. You may not take any action that imposes an unreasonable or disproportionately large load on the CLICKNERD infrastructure. You agree that any unauthorized and/or unlawful use of the CLICKNERD Network, the PROGRAM, Service, Creatives, and/or Code will result in irreparable injury to CLICKNERD for which monetary damages would be inadequate. In such event, CLICKNERD shall have the right, in addition to any and all other remedies granted or available to it under this AGREEMENT and/or by operation of law, to immediate injunctive relief against You without the requirement to post a bond.
Each Party is an independent contractor and not a partner, joint venturer or employee of the other. Neither Party shall have the right to bind the other or to incur any obligation on the other’s behalf.
All notices shall be sent to the address submitted by You when You sign up for the Service and, if to CLICKNERD, to the address listed in the Contact section of the CLICKNERD Network.
24. CHOICE OF LAW
This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario excluding its conflicts of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or provincial courts located in the city of Toronto, Ontario and the parties hereby irrevocably consent to personal jurisdiction and venue therein.