TERMS AND CONDITIONS ORIGINAL CONTENT CREATOR AGREEMENT (CANADA)
1 Representations & Warranties
Each Party represents and warrants to the other Party that:
- it is duly organized, validly existing, and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering; and
- it has the full right, power, and authority to enter into this Agreement and to perform its obligations and to make the declarations hereunder; and
- the execution of this Agreement by a Representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; and
- it has, and throughout the Term, will retain the unconditional and irrevocable right, power, and authority to grant the rights granted hereunder; and
- it has not granted and will not grant any licenses or other contingent or non-contingent right, title, or interest under or relating to its Intellectual Property that is incompatible with the terms of this agreement, or will not be under any obligation, that does or will conflict with or otherwise affect this Agreement, including any Party’s representations, warranties, or obligations or rights or licenses hereunder; and
- it is under no obligation to any third Party that would interfere with its representations, warranties, or obligations under this Agreement.
2 Confidential Information
In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). For the purposes of this Agreement, the term “Confidential Information” means any commercial, technical, scientific, financial, legal, personal or otherwise, disclosed by the Disclosing Party, related to its business activities, strategies and business opportunities, its intellectual property and its suppliers, promoters, finances or employees, and who, at the time of disclosure, are identified as confidential, disclosed in a confidential context or understood by the Receiving Party, demonstrating reasonable business judgment, as confidential (as the “Confidential Information”) but does not include the information that:
- Was known by the Disclosing Party prior to the date it was received and for which the Receiving Party shall provide written documentation to establish the proof of such prior knowledge upon request by the Disclosing Party;
- Was known to the public or generally available to the public before the date on which it was received (such as press releases, technical conference papers, publications in scientific journals, marketing brochures or other general material freely distributed by the Disclosing Party);
- Becomes known by or available to the public after the date on which it is received and which does not result from a breach of confidentiality on the part of the Receiving Party or a third Party;
- Was received at any time by a person not bound to the Receiving Party by an undertaking of confidentiality with regard to such Information;
The receiving Party shall not disclose any such Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to perform its obligations hereunder. 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.
3 Facebook Policy
The Parties recognize that if someone violates the Facebook policies multiple times, their account will be temporarily blocked and/or a page that does so will be unpublished. When a person is in a temporary block, they can read things on Facebook, but they can’t like, comment or post. If that person is also the admin of a Facebook Page, the block prevents them from posting to the page. Facebook offers Channels the opportunity to appeal in case it has made a mistake. In sum, Facebook’s first step is to “unpublish” the page so that it is no longer available on Facebook. If the unpublished page doesn’t appeal or if the appeal fails, the page will be removed.
Proprietor recognizes that the Facebook platform is owned and operated by a third-party and that Creative TRND has no control and can offer no guarantee of success on the outcome of any procedures undertaken pursuant to the terms of this provision. Creative TRND shall not be liable to Proprietor in any manner if any of the Channels or Original Content are unpublished or any other Facebook policy precludes monetization of any Content subject to this Agreement for any reason whatsoever.
4 Regulatory Affairs
The Parties shall cooperate with each other in resolving any regulatory matters relating to the subject matter of this Agreement, including all issues having an influence on the Channels’ eligibility to the Facebook Monetization program and their appeal rights.
Proprietor recognizes Creative TRND’s expertise in Facebook asset management and consequently undertakes to respect the publications schedule, the content restrictions and any other operating method that will be communicated by Creative TRND in good faith.
5 Reservation of rights
Creative TRND hereby reserves all rights not expressly granted to Proprietor under the Agreement. Without limiting the foregoing, all rights granted to Proprietor under the Agreement are subject to Creative TRND and its affiliates’, reserved right to use the Intellectual Property Rights in its respective business, including, but not limited to, intellectual property rights in connection with the promotion, advertising, distribution, and monetization or other services similar to or competitive with the services rendered by the Proprietor, anywhere in the world.
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 the Creative TRND.
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-solicitation undertaking provided for in this section shall be Canada.
Proprietor acknowledges 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.
Both during the Agreement with Creative TRND, and for a period of 12 months from the date of termination of this Agreement (the “Termination Date”), you must not, directly or indirectly, in any capacity whatsoever on your 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:
- (a) solicit or divert any Clientele away from Creative TRND;
- (b) 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;
- (c) hire or arrange for hiring of or approach or solicit or attempt to solicit for the purposes of hiring or arranging the hire of for the benefit of any business:
- (i) a sub-contractor hired under a placement arranged by Creative TRND or;
- (ii) an employee of Creative TRND;
- (d) disparage Creative TRND, its parent corporation and 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 Creative TRND with other parties; or
- (e) 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 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 Creative TRND.
You 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. You 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 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 Proprietor 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 Proprietor 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.
7 Release of Claim
The rights and remedies provided in the Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.
To the fullest extent permitted by Law, Proprietor undertakes to hold Creative TRND harmless from lawsuits and not liable for any direct, indirect damages or any other kind of business and/or legal damages incurred (ex: loss of profits, reputation, revenue, anticipated profits, contracts, opportunities, etc,) for any reason whatsoever as a result of this Agreement or as a result to the negotiation between the Parties prior to the Agreement.
Proprietor expressly waives and hereby releases any and all claims which it has or may in the future have, directly or indirectly, against and forever discharges Creative TRND, its parent corporation and its parent corporation’s wholly and partially owned subsidiaries, and their respective successors, assigns, partners, directors, officers, shareholders, lawyers and employees (herein referred to as “Releases”) from any and all claims, demands, cross-actions, damages, losses, rights, liabilities and obligations, at law or in equity whatsoever, known or unknown, whether past, present or future, now held, owned or possessed by Proprietor, or which Proprietor may, as a result of any actions or inactions occurring on or prior or past to the Effective Date, hereafter hold or claim to hold under common law or statutory right due to negligence by Creative TRND and all other Releases any rights arising, directly or indirectly out of this Agreement or as a result to the negotiation between the Parties prior to the this Agreement.
8 Limitation of Consequential Damages
The rights and remedies provided in the Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.
SUBJECT TO THE FOREGOING AND TO THE FULLEST EXTENT PERMITTED BY LAW, CREATIVE TRND SHALL NOT BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT INCLUDING NEGLIGENCE, STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, PROVIDED, FOR CLARIFICATION PURPOSES, THESE LIMITATIONS SHALL APPLY TO CREATIVE TRND LIABILITY, IF ANY, FOR CONTRIBUTION OR INDEMNITY EVEN IN THE EVENT OF CREATIVE TRND WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
Proprietor shall indemnify, defend, and hold harmless Creative TRND and its parent corporation, its parent corporation’s wholly and partially owned subsidiaries and their officers, directors, employees, agents, successors, and assigns (the “Indemnitees”) against all Losses arising out of or resulting from any third party claim, suit, action, or proceeding (the “Losses”) related to or arising out of or resulting from its breach of any representation, warranty, covenant, or obligation under this Agreement.
Proprietor shall indemnify, defend, and hold harmless Creative TRND’s Indemnitees against all Losses related to the illegitimate advertisement of products, or any product liability, personal injury, intelectual property infringement claims or property damage resulting from third party use of the products it has advertised on the Channels or through the Original Content.
10.1 Force Majeure
Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under 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:
- acts of God;
- flood, fire, or explosion;
- epidemics, pandemics, war, terrorism, invasion, riot, or other civil unrest;
- embargoes or blockades in effect on or after the date of this Agreement;
- national or regional emergency;
- strikes, labor stop or slowdowns, or other industrial disturbances;
- any passage of law or governmental order, rule, regulation, or direction, or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition; or
- national or regional shortage of adequate power or telecommunications or transportation facilities each of the foregoing, a “Force Majeure”), in each case, provided that (i) such event is outside the reasonable control of the affected Party; (ii) the affected Party provides prompt notice to the other Party, stating the period of time the occurrence is expected to continue; and (iii) the affected Party uses diligent efforts to end the failure or delay and minimize the effects of such Force Majeure event.
10.2 Further Assurances
Each Party shall, upon the reasonable request, and at the sole cost and expense, of the other Party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
10.3 Independent Contractors
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, 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.
This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Any Schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
10.5 Privileged Communications
It is expected that, in furtherance of this Agreement, the Parties will, from time to time, disclose to one another privileged communications with counsel, including opinions, memoranda, letters, and other written, electronic, and verbal communications. Such disclosures are made with the understanding that they shall remain confidential and that they are made in connection with the shared community of legal interests existing between the Parties, including the community of legal interests in avoiding infringement of any Third Party Intellectual Property protection of both Party’s Intellectual Property. Notwithstanding such disclosure, each party acknowledges that no such disclosure shall be a waiver of attorney/client privilege of any other communications.
10.6 Entire Agreement
This Agreement, together with all Schedules and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
Proprietor shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the other Party’s prior written consent, which consent shall not be unreasonably withheld or delayed. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving a Party (regardless of whether that Party is a surviving or disappearing entity) shall be deemed to be a transfer of rights, obligations, or performance under this Agreement for which the other Party’s prior written consent is required. Any purported assignment, delegation, or transfer in violation of this is void. Creative TRND may assign this Agreement.
10.8 No Third-Party Beneficiaries
This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
10.9 Amendment; Modification; Waiver
This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the waiving Party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, 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.
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. Upon a determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
10.11 Governing Law
This Agreement, including all schedules, attachments and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement or any statement of work resulting from this agreement, are governed by, and construed in accordance with, the laws of the province of Quebec 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.
10.12 Submission to Jurisdiction
Each Party irrevocably and unconditionally agrees that 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 to this Agreement, 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.
10.13 Equitable Relief
In any claim for equitable relief, each Party acknowledges that a breach by the other Party of this Agreement may cause the non-breaching Party irreparable harm, for which an award of damages would not be adequate compensation and, in the event of such a breach or threatened breach, the non-breaching Party shall be entitled to equitable relief, including in the form of a restraining order, orders for preliminary or permanent injunction, specific performance, and any other relief that may be available from any competent court. These remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available under this Agreement at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
10.14 Publicity and Announcements
Proprietor shall not orally or in writing publicly disclose or issue any press or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of Creative TRND, except to the extent that Proprietor based upon the reasonable advice of counsel is required to make any public disclosure or filing with respect to the subject matter of this Agreement by applicable law.