Master Service Terms and Conditions
Last updated: April 5, 2023
These Master Service Terms and Conditions (“Terms” or this “Agreement”) govern the purchase of services by the Client (“you”, “your”, “Client” and terms of similar meaning) from In Social Incorporated (“we”, “us”, “In Social” and terms of similar meaning) made pursuant to a submitted services agreement (“Services Agreement”).
By accepting these Terms by accepting or executing a Services Agreement that references this Agreement, you agree to be bound by these Terms, and all terms, policies and guidelines incorporated by reference in these Terms.
The Services Agreement is automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Services Agreement expressly conflict with these Terms, the conflicting provisions of the Services Agreement control and shall take precedence over the conflicting provisions of these Terms, but only for purposes of the Services Agreement. Where possible (excluding all circumstances where the provisions in a Services Agreement are expressly stated to over-ride these Terms), any inconsistency between the provisions of a Services Agreement and these Terms shall be interpreted as the provision in the Services Agreement providing for greater detail rather than intending to over-ride the provisions of these Terms.
ARTICLE 1
DEFINITIONS
1.1 APPLICABLE LAW means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services or Deliverables.
1.2 CONFIDENTIAL INFORMATION has the meaning set out in Section 8.1.
1.3 CLIENT MATERIALS means: (a) all materials, including all Client logos, product and service descriptions, images, login details, audio or video recordings, documentation, reports, specifications, technical information, and technologies, recorded in any form and on any media, that may be proprietary to Client and provided to In Social to enable In Social to perform the Services; and (b) all materials provided by the Client to In Social that are necessary for In Social to provide Fulfillment Services, including but not limited to digital files, insert cards, boxes, stickers, packing tape and other branded and unbranded materials; (c) all materials described in a Services Agreement as remaining the property of
Client.
1.4 DELIVERABLES means all Work Product and Toolbox Software that In Social is required under the Services Agreement to deliver to Client as part of the Services.
1.5 DOCUMENTATION means the documentation described in the Services Agreement that is to be prepared by In Social, as part of a Deliverable, to aid Client in the use of the Deliverable.
1.6 FEES means the fees to be paid by Client pursuant to this Agreement and any Services Agreement.
1.7 FULFILLMENT DELIVERABLES means any Deliverables that are required to be delivered
pursuant to the terms of a Services Agreement for Fulfillment Services.
1.8 FULFILLMENT SERVICES means fulfillment Services provided by In Social to the Client as described in a Services Agreement.
1.9 INTELLECTUAL PROPERTY RIGHTS means any intellectual or industrial property rights protected or protectable under the laws of Canada or any foreign country, whether by including any intellectual property rights protected by legislation (such as legislation governing copyrights, industrial designs, integrated circuit topographies, patents or trademarks) or by common law (such as confidential information and trade secrets).
1.10 IP DELIVERABLES means any Deliverables that are intangible, including, but not limited to software deliverables including custom code, websites, social, branding and marketing collateral, designs, organization and campaigns.
1.11 PARTY means a Party to this Agreement.
1.12 PERSON means an individual, corporation, partnership, unlimited liability company, governmental authority, unincorporated organization, trust, association or other entity.
1.13 PROJECT means the scope and purpose of the Client’s identified usage of the Work Product as described in a Services Agreement.
1.14 SERVICES means the services to be provided by In Social to Client as described in a Services Agreement or these Terms and any additional services authorized by Client that In Social agrees to perform or is required to perform hereunder.
1.15 SPECIFICATIONS means the specifications for the Deliverables, and any requirements in respect of the Services, described in the Services Agreement.
1.16 TOOLBOX SOFTWARE means software (including object and source code, frameworks, software platforms and custom code), computer system designs, web applications, documentation, inventions (whether or not patentable or reduce to practice), developments or like materials that are of general purpose functionality that In Social makes, conceives or devises in the course of the Services performed under any Services Agreement that In Social wishes to retain ownership of and any Intellectual Property Rights. Toolbox Software shall be sufficiently described in a Services Agreement to the Client and pre-approved by the Client to be considered Toolbox Software.
1.17 WEBSITE means In Social’s website made available at www.insocial.ca or its sub domains or domains with identical names under other top domains and owned by In Social.
1.18 WORK PRODUCT means all marketing plans, reports, media content (including but not limited to audio, video, pictures, text), design templates, generated content, advertising campaigns, social media campaigns, innovation consulting reports, strategy planning and related guidelines, brand identity design, media planning/buying reports, website deliverables, landing pages, all software (including object and custom theme source code), computer system designs, ecommerce solutions, web applications, software architectural design, visual elements, graphic design, illustration, photography, animation, motion design, audio-visual works, sounds, typographic treatments and text, documentation, inventions (whether or not patentable or reduced to practice), packaged products and materials, developments or like materials, trade secrets, print material, data, processes, methods, improvements or enhancements that In Social makes, conceives, or devises, either solely or jointly with Client, in the course of Services performed under any Services Agreement. Work Product includes the related Specifications. WORK PRODUCT SPECIFICALLY EXCLUDES ANY TOOLBOX SOFTWARE, PRE-EXISTING, THIRD PARTY OR OPEN SOURCE MATERIAL OR SOFTWARE.
ARTICLE 2
SCOPE OF AGREEMENT
2.1 General Procurement Agreement. This Agreement is a general procurement agreement that contemplates that In Social and Client will sign one (1) or more Services Agreements with respect to any Services to be supplied by In Social and acquired by Client.
2.2 Services Agreements. In Social shall provide the Client with a Services Agreement which will contain a statement of the Deliverables, the applicable Fees, and a project plan setting forth the expectations of the parties as to the timing of the various stages of performance of the Services and/or delivery of the Services and Deliverables pursuant to such Services Agreement. The Client will have thirty (30) days to review the Services Agreement and, if the Client raises any objections, the parties may negotiate in good faith to amend the Services Agreement. If the Services Agreement is not executed by the Parties within fourteen (14) days, In Social may, at its sole discretion, reject, amend or replace the Services Agreement. Each Services Agreement shall be effective upon execution by both Parties. The term of each Services Agreement shall be set forth therein or, if no term is specified, shall commence on the parties’ full execution thereof and terminate when the parties have fully performed their obligations thereunder.
2.3 Additional Requests. At any point in time a Client may request In Social to provide an extension of the Services or additional professional services outside the scope of the Services that are specifically specified in the Services Agreement. The Client will, unless otherwise specified in the Services Agreement, prepare a written change request by e-mail or other forms of electronic communication accepted by In Social from time to time. In Social will evaluate and respond to any change request promptly and will advise the Client in writing, of any impact on the fees, additional costs and delivery schedule for any Services as a result of the proposed change. Upon written confirmation from the Client, In Social will proceed with the change, at the price and upon the terms of which the Client was advised, and the Services Agreement shall be deemed to have been amended accordingly. In Social reserves the right to charge the Client, at its standard time and materials rates, outlined in the applicable Services Agreement, for any time spent evaluating and responding to a change request which the Client elects not to implement.
Article 3
SERVICES
3.1 Services. In Social shall in all material respects perform the Services in accordance with this Agreement and the applicable Services Agreement(s), and in a timely, diligent and professional manner. All Deliverables will be designed, developed and/or conform, as the case may be, in accordance with the Specifications, standards or requirements listed in the applicable Services Agreement.
3.2 Specifications, Standards or Requirements of Deliverables. In the event that any Services require In Social to prepare and obtain the approval by Client of any functional, technical or other Specifications, standards or requirements, Client shall use reasonable commercial efforts to provide In Social with any information reasonably required of Client in order to prepare such Specifications, standards or requirements and to review and submit to In Social any comments or concerns Client has with such Specifications, standards or requirements.
3.3 Work Schedule
(a) Timeframes are Estimates Unless Stated to be Firm Deadlines. Unless they are expressly described as firm deadlines, in which case In Social’s obligation shall be to meet such dates, any schedules, deadlines or timeframes set forth in a Services Agreement represent estimates that In Social shall use its reasonable commercial efforts to achieve.
(b) Co-operation; Obligations of Client. The timely and effective completion of the Services requires the successful co-operation of the Parties and the timely performance by each of them of their obligations hereunder, including delivery by Client to In Social of information, opinions, feedback, and materials and the timely performance by Client of the various activities, in each case either expressly or implicitly described in a Services Agreement. The achievement of any schedules, deadlines or timeframes set forth in any Services Agreement, or the quality of the Services provided by In Social, is dependent upon such delivery and performance by Client, and In Social shall not be liable for any delay or cost or expense or the outcome of a Project caused as a result thereof.
3.4 Client Materials. Client hereby grants to In Social a non-exclusive, royalty-free, non-transferable, limited right to use (during the term of the applicable Services Agreement) any Client Materials provided to In Social solely to perform Services pursuant to this Agreement. The parties agree that this grant of rights is expressly made subject to In Social’s confidentiality obligations set forth herein, any other restrictions specified in the applicable Services Agreement. For further certainty, In Social acknowledges and agrees that it does not have and shall not acquire any right, title or interest in the Client Materials, and that it shall not use Client Materials for any purpose other than the Services to be performed for Client.
3.5 Project Management. Each Party will designate a primary contact for each Services Agreement to have responsibilities including, but not limited to, coordinating meetings and information exchanges, reviewing and accepting Deliverables and approving change requests. Each Party shall advise the other promptly upon discovery of any problem that will materially delay the performance of the Services.
3.6 Acceptance. Where a Services Agreement contemplates the development of IP Deliverables, Client shall have a period to review and accept the completed IP Deliverables (such period to be as specified in the applicable Services Agreement or, if no period is specified, within five (5) business days of receipt of the IP Deliverables) and In Social shall have a period to remedy any deficiencies identified by Client (such period to be as specified in the applicable Services Agreement, or a reasonable period if no period is specified). If Client does not give written notice of any deficiencies within such period, it shall be deemed to have accepted the IP Deliverables. For greater certainty, only completed IP Deliverables will be delivered to Client by In Social under this Section.
Article 4
FULFILLMENT, RISK OF LOSS AND REMEDIES
4.1 Shipment and Delivery Requirements. In Social shall prepare all Fulfillment Deliverables for shipment as specified in this Agreement or in an applicable Services Agreement. In Social shall complete the Fulfillment Services pursuant to the terms of a Services Agreement. If necessary, Client may request at its sole cost and expense, (a) expedited or premium shipment or (b) partial shipments of the Fulfillment Deliverables. In Social shall properly pack, mark and ship the Fulfillment Deliverables as instructed by Client and otherwise in accordance with Applicable Law and industry standards and shall provide Client, through its CMS system, with shipment documentation.
4.2 Risk of Loss. In Social will bear all risk of loss or damage with respect to the Fulfillment Deliverables including loss occurring during the storage or warehousing of such Fulfillment Deliverables until delivery of the Fulfillment Deliverables to the appropriate carrier in accordance with the terms hereof. For greater clarity, In Social will not bear any risks of loss or damage with respect to the correct handling, loading, transportation and discharge of the Fulfillment Deliverables.
4.3 Inspection, Acceptance and Remedies. If Client reasonably determines that any Fulfillment Deliverables delivered under this Agreement (a) do not conform with what was set out in the Services Agreement; (b) do not conform with the physical characteristics, capabilities, features, intended uses and other attributes as described to In Social by Client; (c) do not comply with the warranties in this Agreement or the Services Agreement, in addition to the other remedies available at law or in this Agreement; (d) are determined by Client to be defective on inspection due to a failure on the part of In Social to adequately perform the Services; or (e) are in excess or deficient of what was ordered, Client may, at its option, (x) reject and return the Fulfillment Deliverables or request to receive a credit for the entire price paid therefore; (y) require prompt replacement of such Fulfillment Deliverables, at In Social’s sole cost; or (z) retain such Fulfillment Deliverables, as is. If Client proceeds with option (x) and (y) above, Client shall ship, at In Social’s expense and risk of loss, such allegedly defective Fulfillment Deliverables to In Social and In Social will, at In Social’s expense and risk of loss, return any repaired or replaced Fulfillment Deliverables to Client in a timely manner.
4.4 Return of Deliverables. Without limiting its rights under Section 4.3, Clients may return the Fulfillment Deliverables purchased under this Agreement to In Social in accordance with that Client’s specific return policy. In Social shall unpack and restock such Fulfillment Deliverables according to the instruction of Client. In Social shall charge applicable return, restocking or other applicable fees unless such return is pursuant to a reason described in Section 4.3.
Article 5
PRICE AND PAYMENTS
5.1 Invoices and Payments. In Social shall invoice Client for the Services to be provided under a Services Agreement in accordance with the applicable Services Agreement. Payment shall be due as described in the Services Agreement. Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of 2% per month on overdue amounts. The Client shall be responsible for any credit card processing, payment processor or wire transfer payments and fees charged as described on delivered invoices.
5.2 Expenses. In the event that a Services Agreement provides for the payment by Client of any travel, accommodation, transportation and other incidental expenses which are incurred by In Social while performing its obligations with respect to that Services Agreement, Client shall pay such expenses after Client receives an invoice therefore. In addition, and unless otherwise specifically provided in a Services Agreement, the Client shall pay any agreed upon expenses incurred on behalf of the Client and such expenses shall not be included in any Fee quotes.
5.3 Additional Costs. Unless otherwise specifically provided in a Services Agreement, Client shall be responsible for any additional costs related to the provision of the Services, including, but not limited to, external software costs, advertising campaigns costs, photography and/or artwork licenses, prototype production costs, talent fees, and online access or hosting fees, license fees, other software fees, and equipment rental.
5.4 Taxes. Client is responsible for all sales, use, consumption, value added, goods and services and similar taxes which are based upon its acquisition or use of the Services to be provided under this Agreement.
5.5 Change to Fees. In Social reserves the right to introduce or change any Fees related to the Services specified in the applicable Services Agreement from time to time and after six (6) months of the Effective Date of each Services Agreement. If Client does not accept the changed or new Fee, Client must terminate these Terms and the Services Agreement or amend its Services within ten (10) days after such change. After such period, if the Terms and the Services Agreement are not terminated or the Services are not amended, Client continued use of the Services after the effective date of the change indicates Client’s agreement with the new or changed Fees.
5.6 Suspension of Service and Acceleration. If any charge owing by Client under these Terms or a Services Agreement is thirty (30) days or more overdue, In Social may, without limiting its other rights and remedies, accelerate the Client’s unpaid fee obligations under such agreements, so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full.
Article 6
OWNERSHIP; LICENSE
6.1 In Social Ownership of Pre-Existing Software and Toolbox Software. Unless otherwise provided in the applicable Services Agreement, (a) In Social or its licensors, as applicable, shall own all pre-existing and Toolbox Software and all right, title and interest, including, without limitation, all copyright, patent rights, trade secret rights, trademarks and any other proprietary right or interest, therein; and (b) In Social shall license pre-existing and Toolbox Software to Client in accordance with Section 6.3 below. Client shall execute and deliver such instruments and take such other steps as may be requested by In Social from time to time in order to give effect to the provisions of this Article.
6.2 Client Ownership of Work Product. Unless otherwise provided in the applicable Services Agreement, upon delivery of the Services and full payment of Client of all fees and charges to be paid hereunder, Client shall own all Work Product and all right, title and interest, including, without limitation, all copyright, patent rights, trade secret rights, trademarks and any other proprietary right or interest, therein. In Social shall execute and deliver such instruments and take such other steps as may be requested by the Client from time to time in order to give effect to the provisions of this Article. Client hereby grants to In Social a worldwide, perpetual, non-exclusive, royalty-free license to use all such Work Product and other intellectual property so transferred for the purposes of providing the Services hereunder and for In Social’s internal business and product development purposes. For greater certainty, In Social shall be credited with authorship of the Work Product in connection with such uses.
6.3 License to Pre-Existing Software and Toolbox Software. Subject to Sections 6.1 and to the provisions of and to any further limitations or restrictions contained in the applicable Services Agreement, and to payment by Client for the respective Services, In Social hereby grants to Client a non-exclusive, non-sublicensable (other than the right to sublicense such uses to Client’s publisher, web hosting or Internet service In Socials), royalty-free license to use the pre-existing software and Toolbox Software (that are owned or licensed by In Social) solely in connection with the Project, as specified in the Services Agreement.
6.4 Limitations and License Restrictions. Neither Party shall perform any act, or permit any act to be performed by a third party, that would harm, or in any way negatively affect or diminish the other Party’s Intellectual Property Rights or other proprietary rights in or to the Deliverables, pre-existing software or Toolbox Software (as the case may be) or any other rights in law or equity of In Social. Client shall not, and shall not permit any other Person to, access or use any Deliverables except as expressly permitted by this Agreement and the applicable Services Agreement and, where applicable, the license agreement for any pre-existing or third-party software or materials. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement or the applicable Services Agreement expressly permits:
(a) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the pre-existing or Toolbox Software;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the pre-existing software or Toolbox Software to any other Person;
(c) remove, delete, alter or obscure any trademarks, copyright or other intellectual property or proprietary rights notices from any pre-existing or Toolbox Software, including any copy thereof; and
(d) otherwise use the pre-existing or Toolbox Software beyond the scope of the license granted under Section 6.3.
6.5 Pre-Existing, Third Party or Open Source Material or Software. If applicable, a Services Agreement shall include a sufficient description of any known (a) pre-existing, third party or open source material, software or intellectual property that is to be included in the Work Product or Deliverables; (b) any applicable license terms to such pre-existing, third party or open source material, software or intellectual property; and (c) the responsibility for payment of such licenses as between the Parties. In Social shall promptly advise the Client of an intent or desire to include any additional pre-existing, third party or open-source material, software or intellectual property that was not known prior to the execution of such Services Agreement.
6.6 All Other Rights Reserved. Except as expressly set forth herein or in a Services Agreement, all rights to any Work Product and Deliverables are expressly reserved by In Social.
Article 7
REPRESENTATIONS, WARRANTIES AND RESPONSIBILITIES
7.1 Representations and Warranties of Client. Client represents and warrants that: (a) its use of the Services will be consistent with this Agreement and any licenses provided, and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any Applicable Law; (b) Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Materials so that, as received by In Social and used in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights of any third party or violate any Applicable Law; and (c) the Client Materials that are necessary for In Social to provide Fulfillment Services are free from defects in material and workmanship, meet quality industry standards and do not violate any Applicable Law.
7.2 Responsibilities of Client. Client shall, in accordance with the Services Agreements set forth therein:
(a) perform all obligations identified as Client responsibilities in the Services Agreement;
(b) provide the Client Materials and all such other resources as may be specified in the Services Agreement in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Services Agreement;
(c) coordinate any decision-making with parties other than In Social;
(d) provide all consents, approvals, exception notices and other communications specified in the Services Agreement or as otherwise may be required under this Agreement; and
(e) provide all cooperation and assistance In Social reasonably requests to enable In Social to exercise its rights or perform its obligations under this Agreement, including providing required billing information of the Client as requested by In Social in a Services Agreement.
The Client hereby acknowledges and agrees that In Social’s ability to offer the Services and deliver the Work Product, in order to meet the Project specifics, is dependent on the Client’s representations, opinions, and facts provided to In Social, and the Client represents and the warrants that the Client will provide such required input to In Social in an accurate and complete manner to facilitate the satisfactory completion of a Project and/or Parties’ objectives, as outlined in a Services Agreement.
7.3 Representations and Warranties of In Social. In Social represents and warrants that: (a) except for Client Materials, all Work Product shall be the original work of In Social and/or its subcontractors; (b) in the event that the Work Product includes the work of subcontractors commissioned for the Project by In Social, In Social shall have agreements from such subcontractors granting all necessary rights, title, and interest in and to the Work Product sufficient for In Social to grant to Client the applicable Intellectual Property Rights provided in this Agreement or any Services Agreement; and (c) to the best of In Social’s knowledge, the Work Product delivered or specified by In Social and used by Client, in accordance with this Agreement, the Services Agreement and the Documentation, will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third parties.
7.4 Responsibilities of In Social. In Social shall, in accordance with the Services Agreements set forth therein:
(a) perform all obligations identified as In Social responsibilities in the Services Agreement;
(b) where applicable, be responsible for providing Client support to Clients in relation to the Fulfillment Services performed by In Social, such support relating to defective, insufficient, or incorrect Fulfillment Deliverables, returns, and matters relating to shipping and couriers; and
(c) where applicable, be responsible for storing and warehousing any Client’s Materials or Fulfillment Deliverables with sufficient reasonable care and diligence, in a manner consistent with the usual and customary practices of a warehousing and Fulfillment Service In Social and as required in the laws of the State where such Client’s Materials and Fulfillment Deliverables are stored/warehoused. Without limiting the generality of the foregoing, In Social shall, at all times during the term of this Agreement or the applicable Services Agreement, ensure that the Client’s Materials and Fulfillment Deliverables are held in a safe and secure manner, protected from adverse conditions. Such areas of In Social’s warehouse facility shall be equipped with appropriate systems for the safe and secure storage of the Fulfilment Deliverables.
Article 8
CONFIDENTIALITY
8.1 Definition. As used in this Agreement, “Confidential Information” of a Party means secret or confidential information which is not generally known to the public and may include, but is not limited to:
(a) Work Product, marketing, social media and digital advertising consulting, strategy planning, brand identity design, media planning advice, know-how, technical data, research, products, business or financial information, plans or strategies, business practices, operations, procedures, information respecting the Clients of such Party or of its representatives, information respecting the employees of such Party or of its representatives;
(b) information which due to its nature, or the circumstances surrounding its communication, would be reasonably interpreted as constituting confidential information, including the terms and conditions of this Agreement and any Services Agreement;
(c) any other information of any nature, and in any form, received from or belonging to such Party which is marked or identified as confidential; and
(d) proprietary or confidential information of a third party or supplied in confidence by a third party, including that of third party suppliers, in the possession of such Party;
which is acquired by a Party in its performance or receipt of Services under this Agreement.
8.2 Exclusions. Confidential Information does not include the following information: (a) information that is known to the recipient at the time of disclosure as evidenced by any written documents in the possession of the recipient; (b) information that is available to the general public at the time of disclosure to the recipient or is subsequently made available to the general public, without restrictions as to its use or disclosure, without fault of the recipient; (c) information that is disclosed to the recipient by reason by another person or entity having the right to disclose or publicize it; (d) information that is intentionally distributed without restrictions as to confidentiality by the disclosing Party. In addition, each Party may disclose Confidential Information to the extent that the recipient is compelled, pursuant to Canadian law, to disclose it, provided that a Party being compelled to disclose shall provide the other Party with prompt notice (to the extent permitted by law) in order to allow such Party to seek one or more protective orders or other appropriate remedies to prevent or limit such disclosure, and shall co-operate with such Party and its legal counsel to the fullest extent. If such protective orders or other remedies are not obtained, the Party being compelled to disclose will only disclose that portion of the Confidential Information it is legally compelled to disclose, only to such person or persons to which such Party is legally compelled to disclose, and shall provide notice to each such recipient that such Confidential Information is confidential and subject to non-disclosure on terms and conditions substantially similar to and not materially less protective than those in this Agreement, and, if possible, shall obtain each recipient’s written agreement to receive and use such Confidential Information subject to such terms and conditions.
8.3 Non-disclosure. Each Party agrees to use the Confidential Information of the other Party solely for the purpose of performing its obligations or exercising its rights under this Agreement, and will disclose such Confidential Information only to those of its own employees, representatives, agents and contractors who have a need to know the information in connection therewith, and who are under an enforceable legal obligation to keep same confidential and subject to comparable restrictions as apply to the receiving Party under this Agreement, and shall take appropriate action to ensure their compliance with such obligation. Each Party’s efforts to maintain the confidentiality of information under this Agreement, including the measures taken, will not be less than those which the Party takes to prevent disclosure of its own proprietary information of like significance and in no event less than a reasonable standard of care. With the exception of any disclosure permitted by the foregoing, each Party agrees not to sell, license, transfer, publish, disclose, display, make available to others, the Confidential Information of the other Party. In the event of a loss of any item containing Confidential Information of the disclosing Party, or other instance as a result of which the unauthorized disclosure of Confidential Information is suspected (or ought reasonably to be suspected) to have occurred, the receiving Party agrees to promptly notify the disclosing Party in writing upon discovery of such loss.
8.4 Equitable Relief. Each Party acknowledges that it would be damaging to the other Party if Confidential Information of the disclosing Party which the receiving Party has or will come into its possession or knowledge in connection with the Agreement or the performance of the Agreement is used other than is authorized under this Agreement or is disclosed to third parties. It is understood that such damages may be difficult to calculate, that monetary damages alone may not be a sufficient remedy for any breach of the confidentiality obligations contained in this Article and that such breach will cause irreparable damage to a Party. It is hereby agreed that upon any such breach, or threatened breach, by the other Party, the non-breaching Party wishing to protect its Confidential Information will be entitled to seek and obtain equitable relief, including injunctive relief and specific performance, or any other relief as may be granted by any court, without the necessity of proving actual damages or posting of security or a bond.
8.5 Destruction. Each Party, upon request of the other Party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives, agents and contractors to return, all copies of Confidential Information belonging to or provided by the other Party or destroy such copies as directed by that Party and certify their destruction.
8.6 Indemnity. Each Party agrees to indemnify and hold the other Party harmless from and against all loss or damage or any kind and nature suffered by the other Party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Article.
8.7 Publicity and Promotion. Upon execution of this Agreement, In Social shall be permitted to disclose that the Client is a client of In Social, to describe the Services provided to the Client, and to disclose key metrics used to measure the level of success related to such Services, but the specific terms of this Agreement shall remain confidential. In Social shall be entitled to use the Client’s business name, logo, and, if not expressly objected to, (i) include a link to the Client’s website on In Social’s website or in other promotional materials to identify the Client as a client of In Social and (ii) include the words “Designed by In Social” for website footers or brand guidelines implemented by In Social, which will include a link to In Social’s website on the Client’s website or brand guideline, as applicable.
Article 9
INTELLECTUAL PROPERTY INFRINGEMENT
9.1 Intellectual Property Indemnity.
(a) Indemnity. Subject to the limitations and disclaimers set forth in this Agreement, In Social shall indemnify Client against any direct damages and reasonable legal fees and expenses arising from any third party claim (a “claim”) that has been adjudicated by a court and held to be valid, following the exhaustion of all appeals, that any IP Deliverables infringe any registered U.S. or Canadian patent, or U.S. or Canadian copyright, provided that (a) Client notifies In Social in writing within ten (10) days of becoming aware of a claim; (b) Client gives In Social the right to assume sole control over the defense, settlement or compromise of any such claim; and (c) Client provides In Social with the information, assistance and authority to enable In Social to perform its obligations under this Section and co-operates fully in In Social’s defense or settlement of such claim.
(b) Exceptions. In Social will have no indemnity obligation to Client if a claim described in Section 9.1(a) resulted from (i) specific instructions provided by the Client regarding the design or functionality of the IP Deliverables, (ii) a modification of the IP Deliverables not provided by In Social; (iii) the failure by Client to use the latest version of the IP Deliverables or any component of the latest version of the IP Deliverables where the use of the latest version would eliminate the actual or alleged infringement; or (iv) the combination by Client of the IP Deliverables with other items (including Client customizations) not provided by In Social, but only if the claim would not have arisen from use of the IP Deliverables alone.
(c) Replacement, etc. Should the use of any IP Deliverable be enjoined, or if in In Social’s opinion any IP Deliverable may become the subject of a suit or action for infringement, In Social may (i) obtain, at no expense to Client, the right to continue to use such IP Deliverable; or (ii) at no expense to Client, provide Client promptly with a substitute, modified or replacement IP Deliverable that is functionally equivalent to such IP Deliverable and with comparable or better performance and quality characteristics, if applicable; or (iii) terminate the applicable license(s) and refund to Client any amounts paid by Client for use of the applicable intellectual property, pro-rated based on a five-year life from the Effective Date of the Services Agreement.
(d) Sole Liability. This Article states In Social’s sole liability with respect to claims of infringement of third party Intellectual Property Rights of any kind.
Indemnity by Client for Client Materials and Instructions. The Client shall indemnify In Social, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including reasonable legal costs, that In Social may incur as a result of or in connection with (a) any valid claim that the Client’s use of any Client Materials infringes the Intellectual Property Rights of any third party; (b) any claim or suit made by any client of the Client, other than to the extent that such claim or suit relates to the acts or omissions of In Social; (c) any claim that the Deliverables infringe the intellectual property rights of a third party that results from specific instructions provided by the Client regarding the design, architecture or functionality of the Deliverables; (d) any claim involving any actual or alleged bodily injury, death of any person or damage to real or tangible personal property arising out of or resulting from the Client Materials that are necessary for In Social to provide Fulfillment Services, other than to the extent that such claim or suit relates to the acts or omissions of In Social; or (e) any breach of the Client’s obligations under this Agreement.
Article 10
DISCLAIMER OF WARRANTIES AND DAMAGES AND LIMITATION OF LIABILITY
10.1 Limited Warranty. Unless otherwise provided in the applicable Services Agreement, during the period of time identified in the applicable Services Agreement as the “Warranty Period”, which is to begin from the date on which In Social certifies that the IP Deliverables are operational, the IP Deliverables, as used in accordance with the Documentation, will perform in substantial accordance with the Specifications outlined in the applicable Services Agreement (“Limited Warranty”). For greater certainty, In Social does not warrant IP Deliverables described in a Services Agreement, if such Services Agreement does not specifically describe a Warranty Period.
10.2 Exclusive Remedies. Notwithstanding anything herein to the contrary, In Social’s entire liability, and the Client’s sole and exclusive remedy, for a breach of the Limited Warranty shall be, at In Social’s sole option, for In Social to: (a) provide a fix, patch or work-around for the problem; (b) replace the IP Deliverables with products that have similar functionality; or (c) use all commercially reasonable efforts and provide reasonable additional Services to promptly correct the breach.
10.3 Disclaimer. Except as provided herein, the Services and any Deliverables or Fulfillment Deliverables are provided to the Client on an “as is” basis, without warranties from In Social of any kind, either express or implied. In Social expressly disclaims all warranties, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In Social does not represent or warrant that the Services, including without limitation In Social’s findings, interpretation, analysis, recommendations, consulting, strategy, and design work, or any Deliverables or Fulfillment Deliverables will be accurate, complete, reliable, current or error-free, and expressly disclaims any warranty or representation as to the accuracy, fitness for achieving a particular objective, or proprietary character of the Services or any Deliverable or Fulfillment Deliverable. Without limiting the generality of the foregoing, the Fulfilment Deliverables are picked, packed, kitted and shipped using the Client Materials, as such, the Provider provides no warranties whatsoever regarding the Fulfilment Deliverables. Further In Social expressly disclaims that the operation of the IP Deliverables or the provision of the Serivces will not be interrupted by reason of a defect therein, a defect of a third party system or software, or by reason of the fault of In Social hereunder or that the IP Deliverable will meet the requirements of the Client or any end-user. The Client shall be solely and exclusively responsible for the control, operation and security of the transactions and communications made through access to or use of the IP Deliverables. The Client also acknowledges that the Internet is not a secure medium, may inherently be unreliable and subject to interruption or disruption and may be subject to inadvertent or deliberate breaches of the Client’s security.
10.4 No Indirect, Etc. Damages. Under no circumstances shall In Social be liable to Client for any claim for (i) indirect, special or consequential damages, (ii) compensation for loss of profits, anticipated revenue, savings or goodwill, or other economic loss of Client, (iii) exemplary, aggravated or punitive damages howsoever incurred, (iv) contribution or set-off in respect of any claims against Client, (v) any damages whatsoever relating to third party products or services, (vi) any damages whatsoever resulting from any actual or alleged bodily injury, death of any person or damage to real or tangible personal property arising out of or resulting from the Client’s Materials; (vii) any damages whatsoever relating to interruption, delays, errors or omissions; (viii) any loss or disclosure of data or funds contained in, dispensed by or associated with any Deliverable; or (ix) any damages resulting from In Social relying on or complying with inaccurate, incomplete or insufficient instructions obtained by the Client or the Client’s representative(s), in each case under any theory of law or equity, arising out of or in any way related to this Agreement or Deliverables or any Services, even if advised of the possibility thereof.
10.5 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, In Social’s liability to Client for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from this Agreement shall not exceed an amount equal to the fees paid by the Client for the Project in the three (3) months prior to the claim is being made. This limitation of liability shall not apply to In Social’s liability under Article 8 (Confidentiality) or Article 9 (Intellectual Property Infringement Indemnity).
10.6 Limitations Reasonable. Client agrees that the limitations of liability set out in this Article are fair and reasonable in the commercial circumstances of this Agreement and that In Social would not have entered into this Agreement but for Client’s agreement to limit In Social’s liability in the manner, and to the extent, provided for herein. This Article shall apply even in the event of a breach of condition, a breach of an essential or fundamental term, or an essential or fundamental breach of this Agreement.
Article 11
TERM AND TERMINATION
11.1 Term. These Terms shall commence on the date of acceptance of these Terms as set out in the Services Agreement (the “Effective Date”) and continues in full force and effect until the completion of the Services or unless earlier terminated in accordance with the provisions of this Agreement or the Services Agreement.
11.2 Insolvency. Subject to the terms of the Services Agreement, either Party may immediately upon written notice terminate this Agreement in the event the other Party (i) suspends or ceases conducting business in the normal course, (ii) becomes insolvent, (iii) makes a general assignment for the benefit of creditors, (iv) suffers or permits the appointment of a receiver, receiver and manager, or interim receiver, for its business or assets, (v) avails itself of, or becomes subject to, any proceedings under any other statute of any federal government, province or state relating to bankruptcy, insolvency, reorganization, moratorium, arrangement of debt or the protection of rights of creditors, or (vi) makes any proposal, arrangement or compromise with its creditors under applicable bankruptcy or insolvency legislation.
11.3 Breach. Subject to the terms of the Services Agreement, either Party may immediately upon written notice terminate this Agreement in the event the other Party fails in any material respect to perform its obligations under this Agreement or the Services Agreement and the failure continues for a period of ten (10) days after the other Party receives written notice of the failure. If the breach is corrected within the applicable notice period, this Agreement continues in full force and effect, without limitation of any right to damages resulting from the breach.
11.4 Termination for Convenience. Subject to the terms of an applicable Services Agreement, in addition to its other termination rights in this Agreement, if all Services Agreements entered into by the parties have been terminated, In Social may terminate this Agreement and the Services provided under any Services Agreement herein for any reason by giving thirty (30) days written notice to the Client.
11.5 Other Termination Obligations. Upon termination of this Agreement or any Services Agreement for any reason, the Client shall pay any fees for Services and expenses that are outstanding. If necessary, In Social, in its sole discretion, shall pro rate the value of the Services and invoice the Client on the basis of the percentage of the Services outlined in the applicable Services Agreement(s) that have been completed. In addition, each Party shall promptly deliver to the other all papers, databases, documents, software programs, and other tangible items (including all copies) constituting the other Party’s Confidential Information in its possession or under its control, or on request destroy such materials and certify that it has done so.
Article 12
GENERAL
12.1 Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which Client or In Social is required to perform under this Agreement or a Services Agreement (except for any payment obligation) will be postponed automatically to the extent and for the period of time that Client or In Social, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a Party). The following events are deemed to be outside of a Party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, proclamations by government or international authorities, such as the declaration of a national or regional state of emergency, pandemic, epidemic or disaster, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonable foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The Parties agree that an event shall not be considered to be beyond reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the Services Agreement would have put in place contingency plans to either materially mitigate or negate the effects of such event. A Party seeking to rely on this Section must (i) notify the other Party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other Party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available. The provisions of this section do not preclude Client from terminating a Services Agreement, if the delay is experienced by In Social and extends for more than thirty (30) days.
12.2 Assignment. Client may not assign or transfer its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity, without the prior written consent of In Social, which consent shall not be unreasonably withheld, provided that Client may assign its rights and obligations to the purchaser in connection with a sale of all or substantially all of its assets. Any attempted assignment in contravention of this Article shall be null and void. In Social may, in its sole discretion, subcontract any Services to be performed hereunder without the consent of Client in each instance.
12.3 Currency. Unless otherwise specified in a Services Agreement, references to “CA$” or “CAD” are to the lawful currency of Canada and references to “US$” or “USD” are to the lawful currency of the United States.
12.4 Notices. Notices that In Social gives to Client (other than notice of amendment of this Agreement), may be provided via email to the Client (s) at the contact information provided in the Services Agreement or any registration data. Client may provide notice to In Social by (a) submitting a ticket through the Website; or (b) e-mailing In Social at legal@insocial.ca.
12.5 Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the Party claiming to have waived or consented. Any consent by any Party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
12.6 Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction
12.7 Governing Law. This Agreement is governed by and construed in accordance with the applicable laws of the Province of Ontario and the federal laws applicable therein. The parties irrevocably and unconditionally consent, submit and attorn to the non-exclusive jurisdiction of the courts of Ontario and all courts competent to hear appeals from them for the purpose of any action or proceeding brought by either of them in connection with or arising out of this Agreement or a Services Agreement.
12.8 Entire Agreement. This Agreement includes all Services Agreements. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever, whether oral or written, unless they are expressly incorporated by additional reference in the Agreement.
12.9 Amendments. No modification, amendment, supplement to or waiver of this Agreement or any Services Agreement hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties. If any consents of a Party are required pursuant to this Agreement, such consents shall not be unreasonably withheld or unduly delayed.
12.10 Modification of Terms. In Social may modify this Agreement at any time by (a) posting a notice on the Website; or (b) by e-mailing the Client. In Social will also update the “Last Updated” date at the top of the Agreement. Client is responsible for checking the Agreement whenever they use the Services. By continuing to use the Services, Client is indicating that they agree to be bound by the modified terms. If the modified terms are not acceptable to Client, Client must stop using the Services. Notwithstanding the foregoing, the information and material on the Website, and the Website, may be changed, withdrawn or removed at any time in In Social’s sole discretion without notice.
12.11 Benefits. This Agreement is binding upon and endures to the benefit of the parties and their respective successors and permitted assigns, if any, of the parties hereto, except that nothing contained in this provision shall be construed to permit any attempted assignment which would be unauthorized or void pursuant to any other provision of this Agreement.
12.12 Survival. Any terms and conditions of this Agreement which by their nature extend beyond the termination of this Agreement shall survive such termination. This includes, without limitation Article 6 (Ownership; License), Article 8 (Confidentiality), Article 9 (Intellectual Property Infringement Indemnity), Article 10 (Disclaimer Of Warranties And Damages And Limitation Of Liability), Section 12.6 (Governing Law) and Section 12.15 (Non-Solicitation of Personnel).
12.13 Independent Contractors. Each Party’s relationship with the other Party will be that of an independent contractor. Nothing in this Agreement is to be construed as designating either Party as an agent, employee, joint venture or partner of the other Party. In Social shall not permit its personnel or agents to hold themselves out to be, or claim to be officers or employees of Client, or make claims, demands or applications with respect to any right or privileges available to any officer or employee of Client. Neither Party shall have the authority to serve as agent for the other Party, to make any statement, representation or commitment of any kind on behalf of the other Party not to take any action which may be binding on the other Party. In Social shall at all times during the term of this Agreement maintain such supervision, direction and control over its personnel and agents as is consistent with and necessary to preserve its independent contractor status.
12.14 Additional Provisions. The Parties acknowledge that they may from time to time agree to additional rights and obligations that shall apply solely to particular Services or Deliverables, and that the Services Agreements applicable thereto may contain additional rights and obligations of the Parties.
12.15 Non-Solicitation of Personnel. Neither Party shall without the other Party’s prior written consent solicit for hire any of the other Party’s employees who are directly involved in the provision or receipt of the Services during the time such personnel are involved providing or receiving the Services and for twelve (12) months thereafter. This provision shall not restrict the right of either Party (1) to solicit the employment of the personnel of the other Party after such personnel have separated or have been separated from the service of such Party, provided that the hiring Party did not induce such separation, (2) to solicit or recruit generally in the media, and (3) to hire, without the prior written consent of the other Party, any personnel of the other Party who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring Party.
12.16 Non-Solicitation of Clients and Suppliers. During the Term (as defined in the Services Agreement) and for twelve (12) months after termination of this Agreement, neither Party shall, directly or indirectly (i) request, induce or attempt to influence any supplier of goods or services of the other Party to curtail any business it transacts with such Party; (ii) request, induce or attempt to influence any Clients of the other Party which have done business with, or potential Clients which may, to the knowledge of such Party, have been in contact with, the other Party during this period, to curtail or cancel any business they may transact with such Party.
12.17 Counterparts. This Agreement and any Services Agreement may be executed in counterparts, each of which is deemed to be an original and all of which together are deemed to be one and the same instrument. The delivery of a facsimile or electronic copy of an executed counterpart of this Agreement shall be deemed to be valid execution and delivery of this Agreement, but the Party delivering a facsimile or electronic copy shall deliver an original copy of this Agreement as soon as possible after delivery of the facsimile or electronic copy.
12.18 Language. The parties have requested that this Agreement and all documents contemplated thereby or relating thereto be drawn up in the English language. Les parties ont requis que cette Convention ainsi que tous les documents qui y sont envisagés ou qui s’y rapportent soient rédigés en langue anglaise.
12.19 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here:
In Social Incorporated.
legal@insocial.ca