Subject to the occurrence of the conditions set out in Section 1.02 and in compliance with the terms of the Agreement, Customer (as identified in the applicable Statement of Work) hereby agrees to retain Creative TRND , on a non-exclusive basis, for the performance of the services (the “Services”) set out in one or more Statements of Work issued by Creative TRND and accepted by Customer (each, a “Statement of Work”). The Service Agreement and the related Statement of Work shall be deemed issued and accepted only if a Statement of Work is signed by a duly authorized representative of each party for the purpose hereof.
- Creative TRND shall be allowed to use, in relation with this Agreement and the Statement of Work, the trademarks, service marks , trade names and other materials of Customer, or transmitted by Customer;
- Creative TRND shall be allowed to refer itself a service provider of Customer;
- Creative TRND has the right and option, in its sole discretion, to refuse to distribute or produce any material, or to perform any services if it is objectionable to Creative TRND in any way, if it contains false or misleading information, if it contains any illegal information, if it contains any vulgar, violent or pornographic items, or for any other reason Creative TRND considers legitimate;
- If Creative TRND rejects or refuses to produce or distribute any material that the Customer requested, Creative TRND will provide Customer with a written notice to this effect;
- Even after Creative TRND accepts the advertising or the production of any materials, Creative TRND has the right to remove it if it does not function correctly or for any other reasons, including those described above. The distribution of material by Creative TRND does not signify its approval or waiver of the right to object to it in the future.
- Creative TRND is not responsible for periodic downtime for maintenance, backup, Force Majeure and other circumstances beyond its control or which are generally acknowledged circumstances in the its industry;
Creative TRND DOES NOT GUARANTEE ANY GIVEN AMOUNT OF IMPRESSIONS OR VOLUME OF DISTRIBUTION TO CUSTOMER AS A RESULT OF ITS ADVERTISING SERVICES UNLESS otherwise specified in a Statement of Work or IF A SEPARATE GUARANTEE ADDENDUM HAS BEEN EXECUTED BY BOTH PARTIES HERETO.
Unless specific results are Guaranteed in a Statement of Work, Creative TRND undertakes to use its Best Efforts, which means the efforts which a prudent Person desirous of achieving a result would use in similar circumstances to maximize, to the extent reasonably practicable, the probability that a result will occur, and includes state of the art and generally acknowledged best practices (the “Best Effort”), in the performance of its obligations under this Services Agreement or the Statements of Work attached hereto.
Customer undertakes to fully cooperate with Creative TRND to allow the latter to efficiently and punctiliously perform its duties and obligations herein and to use its Best Effort to ensure the marketability and success of the services defined in the Statements of Work attached hereto. Customer shall communicate all information reasonably required by Creative TRND to perform its duties adequately, including, if necessary and without being limitative, all usernames, passwords and other accesses to Customer’s social media accounts, websites, etc.
In consideration of the performance of the Services by Creative TRND and the rights granted to Customer under this Agreement, Customer shall pay the fees set out in the applicable Statement of Work. Payment to Creative TRND of such fees and the reimbursement of expenses pursuant to this Section 4 shall constitute payment in full for the performance of the Services. Unless otherwise provided in a Statement of Work, said fee will be payable within TEN (10) days of receipt by Customer of an invoice from Creative TRND .
Customer shall reimburse Creative TRND for all reasonable expenses incurred in accordance with the Statement of Work within TEN (10) days of receipt by the Customer of an invoice from Creative TRND accompanied by receipts and other reasonable supporting documentation.
Creative TRND shall be solely responsible for all sales, service, value-added, use, excise, consumption, and any other applicable taxes, duties, and charges of any kind, if any, imposed by any governmental entity on any amounts received by Creative TRND under this Agreement or any Statement of Work and for all taxes, duties, and charges of any kind associated with Creative TRND ’s doing business.
Costumer shall be solely responsible for all sales, service, value-added, use, excise, consumption, and any other applicable taxes, duties, and charges of any kind, if any, imposed by any governmental entity on any amounts received by Costumer under this Agreement or any Statement of Work and for all taxes, duties, and charges of any kind associated with Customer’s doing business.
Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the rate of EIGHTEEN PERCENT (18%) per annum, calculated daily and compounded monthly. Customer shall also reimburse Creative TRND for all reasonable costs incurred in collecting any late payments, including, without limitation, the legal fees. In addition to all other remedies available under this Agreement or at law (which Creative TRND does not waive by the exercise of any rights hereunder), Creative TRND shall be entitled to suspend the provision of any Services if the Customer fails to pay any undisputed amounts when due hereunder and such failure continues for FIFTEEN (15) days following written notice thereof.
- it is a legal entity, duly organized, validly existing and in good standing under the laws of its jurisdiction;
- it has the full right, power and authority to enter into this Agreement, and to perform its obligations hereunder;
- it has obtained all material licenses, authorizations, approvals, consents or permits required by applicable Laws (including the rules and regulations of all authorities having jurisdiction) to conduct its business;
- it has the full right, power and authority (by ownership, license or otherwise) to use all patents, copyrights, trademarks or other intellectual property embodied in any materials it provides to Creative TRND in relation with this Agreement (the “Customer Materials”), and to grant Creative TRND the rights set forth herein, on the terms and conditions of this Agreement.
Customer shall indemnify, defend, and hold harmless Creative TRND and its affiliates, and each of Creative TRND ’s and Creative TRND ’s affiliates respective officers, directors, employees, agents, successors, and assigns (each, a “ Creative TRND Indemnified Party”) from and against all losses, including reasonable legal fees, arising out of or resulting from any indemnified claim relating to:
- any breach by Customer of any representation, warranty, covenant, or obligation under this Agreement;
- the gross negligence or willful misconduct, or any failure to comply with applicable Law, of any employee, agent, or independent contractor of Customer or any of its subcontractors in connection with this Agreement;
- the infringement, misappropriation, or other violations of any patent rights or any intellectual property rights of any third party by Creative TRND ’s performance of the Services in accordance with the terms of this agreement;
- it is a corporation, duly organized, validly existing and in good standing under the laws of the province of Quebec and the federal laws of Canada;
- it has the full right, power and authority to enter into this Agreement, to grant to Customer the rights and licenses set forth herein, and to perform its obligations hereunder;
warrants that it shall perform the Services ;
- in accordance with the terms and subject to the conditions set out in the Statement of Work and this Agreement;
- using personnel of commercially reasonable skill, experience and qualifications;
- in a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
- Creative TRND shall use commercially reasonable efforts to promptly cure any such breach; provided that, if Creative TRND cannot cure such breach within a reasonable time, but no more than THIRTY (30) days, after Customer’s written notice of such breach, Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 9.02.
- In the event the Agreement is terminated pursuant to Section 6.02 (a), Creative TRND shall, within (30) days after the effective date of termination, refund to Customer any fees paid by the Customer as of the date of termination for the Services or Deliverables, less a deduction equal to the fees for receipt or use of such Deliverables or Services up to and including the date of termination, on a pro-rated basis.
- The foregoing remedy shall not be available unless Customer provides written notice of such breach within THIRTY (30) days after acceptance of such Services or Deliverable to Customer.
IN NO EVENT SHALL Creative TRND’S AGGREGATE LIABILITY TOwards CUSTOMER OR ANY THIRD PARTY, ARISING OUT OF OR RELATED TO THIS AGREEMENT, for ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT Creative TRND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO Creative TRND PURSUANT TO THE STATEMENT OF WORK APPLICABLE IN THE PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Unless otherwise set forth in a Statement of Work, all intellectual property rights, together with all of the goodwill associated therewith, derivative works, moral rights and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Creative TRND in the course of performing the Services, including any items identified as such in the Statement of Work (collectively, the “Deliverables”), except for any Confidential Information of Customer or Customer materials, shall be owned by Creative TRND . Creative TRND hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information and other sensitive or proprietary information (collectively, "Confidential Information"). Confidential Information shall not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by receiving party on a non-confidential basis from a third party.
- use the Confidential Information for the sole purpose for which it has been disclosed;
- allow third parties to access to the Confidential Information on a need-to-know basis only;
- take appropriate steps, upon such disclosure to a third party, to protect the proprietary nature of its Confidential Information by requesting that said third party sign a non-disclosure agreement providing at least the same protection of such information as that provided hereunder;
- use all reasonable efforts as may be appropriate to restrict access to its Confidential Information;
- inform the disclosing party of any unauthorized access to, or use of, its Confidential Information by a third party;
- assist the disclosing party in any undertaking or legal proceedings required to protect its Confidential Information.
If the receiving party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify disclosing party of such requirements to afford disclosing party the opportunity to seek, at disclosing party’s sole cost and expense, a protective order or other remedy.
On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and, upon request, certify in writing to the disclosing party that such Confidential Information has been destroyed.
This Agreement is effective as of the Effective Date of the most recent Statement of Work and, unless earlier terminated in accordance with this Section 9, will continue in full force until the completion of the Services (the “Term”).
- Breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within THIRTY (30) days after receipt of written notice of such breach;
- Becomes insolvent or admits its inability to pay its debts generally as they become due;
- Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within SEVEN (7) days or is not dismissed or vacated within FORTY-FIVE (45) days after filing;
- Is dissolved or liquidated or takes any corporate action for such purpose;
- Makes a general assignment for the benefit of creditors;
- Has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
Notwithstanding anything to the contrary in Section 9.03 (a), Creative TRND may unilaterally terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder: (a) and such failure continues for FIFTEEN (15) days after Customer’s receipt of written notice of nonpayment; or (b) more than ONE time in any THREE (3) months period.
The termination of the Agreement or of any Statement of Work shall not affect the survival and enforceability of any provision of the Agreement which is expressly or implicitly intended to remain in effect after such termination, including the Confidentiality protection.
This Agreement, including and together with any related Statement of Works, exhibits, schedules, attachments and appendices, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein (the “Agreement”), and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Statement of Work, the terms and conditions of this Agreement shall supersede and control.
Unless otherwise agreed herein, all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) shall be sufficient in writing and addressed to the other party by e-mail or similar forms of communication. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section 10. Notices requires by law to be mailed shall be sent to the address set forth in the header of the applicable Statement of Work. Each party shall notify the other Party of any changes to its address.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement is invalid, illegal or unenforceable, the remainder of this Agreement shall be unenforceable.
No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party.
No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Creative TRND . Any purported assignment or delegation in violation of this Section 15 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. Creative TRND may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of Creative TRND ’s assets.
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
This Agreement, including all related Statement of Work, schedules, attachments and appendices attached hereto, and all matters arising out of or relating to this Agreement or any Statement of Work, are governed by, and construed in accordance with, the laws of the province of Quebec and the federal laws of Canada applicable therein without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the province of Quebec.
Each party irrevocably and unconditionally agrees for any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all Statements of Work, exhibits, schedules, attachments, and appendices attached hereto, the services provided hereunder, and all contemplated transactions, to elect the judicial district of Montreal, province of Quebec, Canada and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding.
Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, litigation or other proceeding brought in any such court. Each party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 10, a signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
Creative TRND shall not be considered in default of its duties or obligations hereunder or liable for any damages or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Creative TRND including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of SEVEN (7) days, Customer shall be entitled to give notice in writing to Creative TRND to terminate this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Customer acknowledges that it has been afforded the opportunity to obtain independent legal advice with respect to this Agreement, to discuss and negotiate the terms of the Statement of Work, and confirms that he or she is acting of his or her own free will and not under duress nor undue influence.
The PARTIES acknowledge that they have requested and agreed that this Agreement and all documents, notices, correspondence and legal proceedings consequent upon, ancillary or relating directly or indirectly thereto forming part hereof or resulting herefrom or and any be drawn up in English. Les PARTIES reconnaissent qu’elles ont exigé et consenti à ce que le présent contrat ainsi que toute procédure, avis et autre document s’y rapportant, directement ou indirectement soient rédigés en anglais.
THE PARTIES Recognize that any issued and accepted Statement of Work between themselves is part of this Service Agreement and that any term, condition or right set forth herein is valid and applicable