Last modified: February 13th, 2020.
1. ENTIRE AGREEMENT.
These Terms and Conditions, including and together with the Distribution Agreement and any related statement of work, exhibits, schedules, attachments, and appendices, constitute the sole and entire agreement (hereinafter the “Agreement”) between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The Agreement expressly exclude any of Influencer’s (as defined in the Distribution Agreement) general terms and conditions or any other document issued by Influencer.
Influencer shall provide to CREATIVE TRND the social media and other media advertising and marketing Services as described in Schedule-Statement of Work (the "Services")
Influencer shall provide the Services:
- in accordance with all applicable laws, rules, regulations and codes as well as the terms and subject to the conditions set forth in this Agreement;
- using personnel of required skill, experience, and qualifications;
- in a timely and professional manner;
- in accordance with the highest industry standards for similar services;
- devoting adequate resources to meet its obligations under this Agreement; and
- to the reasonable satisfaction of CREATIVE TRND.
3. INFLUENCER POSTING AND PUBLICATION REQUIREMENTS.
- Comply with the disclosure requirements that are set out in the statement of work (if any).
- Include the hashtags set out in the statement of work in all posts or publications.
- Post or publish the content set out in the statement of work, in accordance with the agreed-upon production and delivery schedule (in any).
- Make only factual statements, including about CREATIVE TRND and its products or services.
- Reflect only honest and truthful opinions and actual experiences.
- Influencer shall make all changes, additions or modifications or immediately remove any content at CREATIVE TRND's request.
- Not post or publish any content that promotes bigotry, racism or discrimination based on race, gender, religion, nationality, disability, sexual orientation or age or other protected grounds under applicable human rights legislation.
- Not post or publish any third-party intellectual property, including but not limited to, content, photographs, trade-marks, logos, music or celebrity names, photos, images, voices or other likenesses of an individual (whether famous or not) without the prior written consent of the individual or owner, as applicable, which consent Influencer may be required to evidence to CREATIVE TRND, in a form satisfactory to CREATIVE TRND.
- Not make any statements that are disparaging, negative, defamatory or potentially damaging in any way about CREATIVE TRND or its products or services, or any third party.
4. CREATIVE TRND OBLIGATIONS.
CREATIVE TRND shall provide and shall respond promptly to any reasonable requests from Influencer for materials, instructions, information, or approvals required by Influencer to provide the Services.
5. CREATIVE TRND RIGHT TO REPUBLISH AND EDIT.
CREATIVE TRND shall have the right to: (a) republish any content created or produced by Influencer in performing the Services in any medium throughout the world for a period of TWO (2) years and for no additional compensation; and (b) edit, alter, translate or otherwise modify such content in any way whatsoever, in CREATIVE TRND’s sole discretion.
6. COMMERCIAL TERMS.
In consideration of the performance of the Services by the Influencer and the rights granted to CREATIVE TRND under this Agreement, CREATIVE TRND shall pay the compensation set out in the Agreement. Payment to Influencer of such fees and the reimbursement of expenses pursuant to the compensation section of the Agreement shall constitute payment in full for the performance of the Services.
CREATIVE TRND shall reimburse Influencer for all reimbursable expenses related to the performance of the Services, provided that influencer shall disclose the exact amount of the expense and shall obtain CREATIVE TRND’s clear and non-ambiguous written consent for the reimbursement prior to incurring the expense.
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 disbusiness. Influencer 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 Influencer under this Agreement and for all taxes, duties, and charges of any kind associated with Influencer’s doing business.
7. WORK PRODUCT OWNERSHIP AND INTELLECTUAL PROPERTY.
7.1 OWNERSHIP OF DELIVERABLES
CREATIVE TRND owns and shall own all worldwide right, title, and interest in and to all written, graphic, digital, coded, photographs, audio, audio-visual materials and any other work product or other materials (whether finished or unfinished and whether used by CREATIVE TRND or not) that are delivered to CREATIVE TRND under this Agreement or are prepared by or on behalf of Influencer in the course of performing the Services, including all Intellectual Property Rights (as defined below) therein, together with all of the goodwill associated therewith (collectively, the "Work Product"). Work Product shall include, without limitation (whether finished or unfinished and whether used by CREATIVE TRND or not), all copy, posts, blogs, articles, documents, derivative works, videos, taglines, research, studies, reports, presentations and proposals, artwork, music, photographs, graphic materials, and audiovisual works. "Intellectual Property Rights" shall mean all copyrights, trade-marks, trade dress, trade names, trade secrets, patents, industrial designs, and other intellectual and industrial property rights.
7.2 RIGHTS, TITLES AND INTEREST
Influencer irrevocably assigns to CREATIVE TRND all worldwide right, title, and interest in and to all Intellectual Property Rights Influencer has or may in the future in Work Product. To the extent permitted by law, Influencer irrevocably and unconditionally waives and agrees not to assert any and all so-called "moral rights" that Influencer has, or may in the future have, concerning the Intellectual Property, including but not limited to, the right to the integrity of any copyright works, the right to be associated with any copyright work as its author by name or under a pseudonym, and the right to remain anonymous. Upon CREATIVE TRND's request, Influencer will promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist CREATIVE TRND to prosecute, register, perfect, or record its rights in or to any Work Product and the associated Intellectual Property Rights.
8. NON-COMPETITION / NON-SOLICITATION
Unless otherwise indicated, capitalized words and expressions appearing in the Terms and Conditions shall be interpreted or construed according to the meanings specified:
"Clientele” shall mean all current, past or future customer/clients that have provided consideration to CREATIVE TRND for services to be rendered or potential customer/client or maturing business opportunity of CREATIVE TRND.
"Territory" shall mean the geographical area that CREATIVE TRND services. To be more precise, the boundaries of the geographical area will include the geographical location of where Clientele is physically located, and the geographical area serviced by CREATIVE TRND to Clientele. In the event that the Territory is found by any court of competent jurisdiction to be unreasonable or abusive, the geographic area applicable to the non-competition undertaking provided for in this section shall be Canada.
Influencer acknowledge that the covenants and restrictions set out below ("Restrictions") are reasonably required to protect CREATIVE TRND, which term includes any parent, subsidiary, affiliated, related or associated company for whom you rendered services at any time prior to the Termination Date as defined below and its goodwill from unfair competition, are ongoing, and will survive the cessation for any reason whatsoever of this Agreement with CREATIVE TRND.
During the Term of this Agreement, and for a period of 12 months from the Termination Date, Influencer must not, directly or indirectly, in any capacity whatsoever on its own behalf or on behalf of any other person, firm, company or association (unless you have the CREATIVE TRND’s prior written approval) in the Territory:
- approach or solicit (or attempt to solicit) business from Clientele, wherever situated, for the benefit of any business which is the same as or directly competitive with the business of the CREATIVE TRND (“Competitive Services”) in an attempt to direct any such Clientele away from the CREATIVE TRND;
- provide Competitive Services to any Clientele of the CREATIVE TRND;
- solicit or divert any Clientele away from the CREATIVE TRND;
- induce or persuade any Clientele, supplier, agent or other person under contract or otherwise associated or doing business with the CREATIVE TRND to reduce or alter any such association or business with the CREATIVE TRND;
hire or arrange for hiring of or approach or solicit (or attempt to solicit) for the purposes of hiring or arranging the hire of:
- a sub-contractor hired under a placement arranged by the CREATIVE TRND; or
- an employee of the CREATIVE TRND
- disparage the CREATIVE TRND, its affiliated companies, their services and their employees, officers or directors or otherwise interfere or attempt to interfere with any of the contractual, business or economic relationships of the CREATIVE TRND with other parties; or
- solicit or entice away (or attempt to solicit or entice away) any person or entity who is known by you to be employed or engaged by the CREATIVE TRND as of (or within 12 months following) the Termination Date, for the purpose of inducing such person or entity to end their employment or engagement with the CREATIVE TRND.
Influencer acknowledge that it would be difficult to compute the monetary loss to the CREATIVE TRND arising from your breach or threatened breach of the Restrictions and that, accordingly, the CREATIVE TRND will be entitled, in addition to any other rights and remedies that it may have at law or equity, to a temporary or permanent injunction restraining you from engaging in or continuing any such breach. Influencer acknowledge and agree that a temporary or permanent injunction will not prevent you from earning a reasonable livelihood.
If any provision herein is held by a court of competent jurisdiction to be overly broad, that provision is to be construed to afford the CREATIVE TRND the maximum protection permitted by law. If any provision of herein is held by a court of competent jurisdiction to be invalid or unenforceable, that provision is to be deleted in such jurisdiction only, and the other provisions remain in effect and are valid and enforceable to the fullest extent permitted by law.
The contravention of this undertaking by Influencer shall result in a penalty that equals one year of salary of the solicited employee or equal to all revenue generated by the solicited clientele. Such penalty shall be payable to CREATIVE TRND which shall, however, preserve its right to commence the proceedings it considers appropriate in order to cause the above-mentioned contravention to cease without the need to prove actual damages. This penalty shall be payable to CREATIVE TRND not later than FIVE (5) days from the receipt by Influencer of a demand to such effect and shall bear interest at the 5% in effect on the date of the receipt of the demand, which interest shall begin to accrue as of the above-mentioned date.
All non-public, confidential or proprietary information of CREATIVE TRND ("Confidential Information"), including, but not limited to, business plans, operations, strategies, and information on products or services, sales, pricing, trade secrets, technology, advertising, marketing, consumers and customers, disclosed by CREATIVE TRND to Influencer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for Influencer's use in performing the Services under this Agreement and may not be disclosed or copied unless authorized by CREATIVE TRND in writing.
Confidential Information does not include any information that:
- is or becomes generally available to the public other than as a result of Influencer's breach of this Agreement;
- is obtained by Influencer on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information;
- Influencer establishes by documentary evidence, was in Influencer's possession prior to CREATIVE TRND's disclosure hereunder; or
- was or is independently developed by Influencer without using any Confidential Information.
Upon CREATIVE TRND's request, Influencer shall promptly return all documents and other materials received from CREATIVE TRND. CREATIVE TRND shall be entitled to injunctive relief for any violation of this Section 9.
10. TERM, TERMINATION AND SURVIVAL
10.1 INITIAL TERM
This Agreement is effective as of the Effective Date and, unless earlier terminated in accordance with this Section 10, will continue in full force until the completion of the Services (the “Term”).
10.2 TERMINATION WITH NOTICE
Either Party may terminate this Agreement, effective upon a thirty (30) days written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
- 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;
10.3 RIGHT TO TERMINATION WITHOUT NOTICE
CREATIVE TRND may terminate this Agreement, effective upon written notice to the Influencer (or its heirs or representatives, as applicable) in the event of:
- Influencer's death, or serious injury or illness that renders Influencer's performance of his or her remaining obligations under this Agreement impossible or impracticable but excluding an injury or illness that is the result of a Force Majeure that only results in a temporary delay of Influencer's performance of his or her obligations.
- Charge of or commission by Influencer of a criminal offence at any time during or prior to the Term.
- Alleged commission or commission of an act by Influencer that brings Influencer or CREATIVE TRND into public disrepute, contempt, scandal or ridicule.
- Alleged commission or commission of an act by the Influencer at any time during or prior to the Term that tends to shock, insult, or offend the community or any substantial portion thereof, or to offend public morals and decency to such an extent that the value of the Services is, in the reasonable judgment of CREATIVE TRND, substantially impaired.
- Actions or statements or alleged actions or statements by Influencer at any time during or prior to the Term reasonably deemed by CREATIVE TRND to be of a derogatory nature toward CREATIVE TRND, its products or services, or any third party or third-party products or services, or which may tend to injure the success of CREATIVE TRND or any of CREATIVE TRND's products or services.
- The involvement or association of Influencer with any event or circumstance caused by (i) one or more of Influencer's immediate family members, or (ii) others closely associated in the public's mind with Influencer (other than CREATIVE TRND) that renders the use of the Services or Work Product detrimental to the marketing of the CREATIVE TRND's product or services, in the reasonable judgment of CREATIVE TRND.
10.4 OBLIGATIONS OF INFLUENCER ON EXPIRATION OR TERMINATION.
Upon expiration or termination of this Agreement for any reason, Influencer shall promptly:
- Except as expressly provided for under this Agreement, cease using CREATIVE TRND's Intellectual Property;
- Deliver to CREATIVE TRND all documents, Work Product, and other materials, whether or not complete, prepared by or on behalf of Influencer in the course of performing the Services;
- Return to CREATIVE TRND all CREATIVE TRND-owned property, equipment, or materials in its possession or control;
- Remove any Influencer-owned property, equipment, or materials located at CREATIVE TRND's locations;
- Deliver to CREATIVE TRND, or destroy, at CREATIVE TRND's option, all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on CREATIVE TRND's Confidential Information;
- On a pro rata basis, repay all fees and expenses paid in advance for any Services, which have not been provided;
- Permanently erase all of CREATIVE TRND's Confidential Information from its computer systems;
- Certify in writing to CREATIVE TRND that it has complied with the requirements of this Section.
The termination of the Agreement 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.
Influencer shall, at its expense, indemnify, defend, and hold harmless CREATIVE TRND, CREATIVE TRND's affiliates, parent and subsidiaries and each of their respective officers, directors, employees, agents, affiliates, successors, and permitted assigns (each, an "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, (collectively, "Losses"), arising out of or resulting from any claim of a third party or CREATIVE TRND arising out of or occurring in connection with Influencer's negligence, willful misconduct, or breach of its obligations, representations and warranties under this Agreement. Influencer shall not participate in any proceedings or settlement without CREATIVE TRND's or Indemnified Party's prior written consent.
In the event of any proceeding, litigation, investigation, or other proceeding by any regulatory entity against CREATIVE TRND relating to the Services of Work Product prepared by Influencer, Influencer shall provide all requested assistance to CREATIVE TRND in preparing its defense.
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 12. Notices requires by law to be mailed shall be sent to the address set forth in the header of the applicable Agreement. 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.
Influencer 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 16 shall be null and void. No assignment or delegation shall relieve the Influencer 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.
17. SUCCESSORS AND ASSIGNS
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
18. NO THIRD-PARTY BENEFICIARIES
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.
19. CHOICE OF LAW
This Agreement and all matters arising out of or relating to this Agreement 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.
20. CHOICE OF FORUM
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, or 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 this Agreement, 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.
22. FORCE MAJEURE
Neither Party shall be considered in default of its duties or obligations hereunder or liable for any damages or responsible to the other Party, 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 the Party 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, the Party suffering the prejudice shall be entitled to give notice in writing to the other Party to terminate this Agreement.
23. RELATIONSHIP OF THE PARTIES.
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.
Influencer acknowledges that it has been afforded the opportunity to obtain independent legal advice with respect to this Agreement, to discuss and negotiate the terms, and confirms that he or she is acting of his or her own free will and not under duress nor undue influence.
25. COMMUNICATION AND LANGUAGE
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