Terms in these Terms and Conditions shall have the meaning given to them here or in the Membership Proposal signed by you.
Purchase of Services
SmileShop Marketing agrees to provide marketing and advertising services indicated under the Client Approved Program (the “CAP”) and marked as “CAP” hereafter. Following acceptance of this Agreement by the Client, SmileShop Marketing will set up an onboarding call with the Client to activate the program.
Nothing in this Agreement shall be deemed to require SmileShop Marketing to undertake any act or perform any services which in its good faith judgment would be misleading, false, libelous, unlawful, in breach of a contract, or otherwise prejudicial to the Client’s or SmileShop Marketings’ interests.
This Agreement will commence on the Commencement Date. This Agreement shall continue in full force and effect until terminated by the Client or SmileShop Marketing in accordance with the Termination section below (“Agreement Term”).
During the Agreement Term, the Client may wish to assign additional products or services to SmileShop Marketing beyond the scope contemplated in the CAP herein. SmileShop Marketing will accept such additional products and services to the extent feasible, provided, however, that the parties agree that SmileShop Marketing shall be obligated to so perform only upon execution of a mutually agreed-upon revised CAP.
The Client acknowledges and represents that it will respect stipulated product fulfillment timelines and provide SmileShop Marketing all information as may be requested and reasonably required to launch the CAP, on or before the specified timeline provided.
The Client further acknowledges and agrees that SmileShop Marketing will not be responsible nor liable for any delays in products or services provided as contemplated in this Agreement arising from the Client’s failure to provide requisite information within the specified timeline herein.
By SmileShop Marketing
SmileShop Marketing may unilaterally terminate this Agreement prior to the expiry of the Agreement Term by giving twenty-four (24) hours written notice to the Client upon the occurrence of any of the following events:
- Commission of a material breach of this Agreement by the Client, which breach is not rectified within fourteen (14) days of receipt of written notice of such breach. Without limiting the generality of the forgoing, non-communication by the Client after four (4) documented communication attempts by phone, email, or electronic communication within fourteen (14) days of first attempt shall constitute a material breach;
- Voluntary or involuntary cessation of business by the Client by way of bankruptcy or otherwise; or
- Reproduction, by the Client, of either a portion or the entirety of any Services created by SmileShop Marketing in any other media without SmileShop Marketings’ express, written consent.
Should SmileShop Marketing terminate the Agreement as outlined above, SmileShop Marketing shall be entitled to seek further equitable relief, if required.
SmileShop Marketing may also terminate this Agreement at any time for convenience upon providing the Client with fourteen (14) days’ prior notice.
By the Client
The Client can terminate this Agreement at any time by providing 14 days prior written notice either by physical or electronic medium to SmileShop Marketing. At this stage, the Client will begin the offboarding process with design and content files being packaged into a zip folder and delivered to the client.
Both the Client and SmileShop Marketing agree to hold each other’s Proprietary or Confidential Information in strict confidence. Subject to provisions to the contrary in this Agreement, “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, records, computer retained information, social media access and authorization information, notes, and financial information.
Proprietary or Confidential Information shall not include any information which:
- is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party;
- was previously known to the receiving party or rightly received by the receiving party from a third-party;
- is independently developed by the receiving party; or
- is subject to disclosure under court order or other lawful process.
Both the Client and SmileShop Marketing agree not to make each other’s Proprietary or Confidential Information available in any form to any third-party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement without the other’s express, written consent. The Client’s and SmileShop Marketings’ respective Proprietary or Confidential Information shall remain the sole and exclusive property of that particular party.
Notwithstanding termination or expiration of this Agreement, the Client and SmileShop Marketing acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect after the termination or expiration of this Agreement.
Within ten (10) days after the termination or expiration of this Agreement, the Client and SmileShop Marketing shall return to the other all Proprietary or Confidential Information of the other party (and any copies thereof) in their respective possession, including packaging of all paid for assets delivered, or, with the written consent of the other, destroy all such Proprietary or Confidential Information.
Trademarks and intellectual property
The Client acknowledges that it is not authorized to use SmileShop Marketings’ name or any of its trademarks without the prior written consent of SmileShop Marketing The Client also acknowledges that SmileShop Marketing owns all of the Intellectual Property Rights (as that term is defined below) related to all aspects of the Services. The Client shall not reproduce the same without SmileShop Marketings’ prior written consent.
Should the Client adhere to all the terms and conditions of this Agreement, then upon termination of this Agreement, the Client may obtain all transferable intellectual property associated with the graphics and content developed under the applicable CAP. All other parts, items and aspects of the Services, whether in whole or in part, shall remain the Intellectual Property Rights of SmileShop Marketing.
As used herein, “Intellectual Property Rights” means all patents, copyrights, trade secrets, trade names, know-how, moral rights, licenses, developments, designs, processes, formulas, and other intangible proprietary or property rights, whether or not patentable (or otherwise subject to legally enforceable restrictions or protections against unauthorized third party usage), and any and all applications for, and extensions, divisions, and reissuances of, any of the foregoing, and rights therein, and whether arising by statute or common law.
Third Party Content
The Client acknowledges and agrees that SmileShop Marketing may aggregate, display and publish third-party content related to the Client, as well as publish the Client’s content to third-party partners of SmileShop Marketing. Further, the Client acknowledges and agrees that SmileShop Marketing shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with third-party content or the publishing of the Client’s content to third-party partners. The Client releases and saves harmless SmileShop Marketing from all liability with respect to third-party content or the publishing of the Client’s content to third-party partners.
The Clients Warranty
The Client warrants that it is authorized to publish the digital advertising. The Client warrants that it holds all permits or licenses which may be advertised, including any license to practice issued by any professional or other regulatory body exercising its jurisdiction over the Client’s activities. The Client further warrants that it holds all the rights to use the trademarks or trade names included in digital advertisements and that such use does not violate any provision of any law or statute, including the Trademarks Act, the Copyright Act and any other law or statute relating to intellectual property, privacy, or electronic communications.
No Warranty of Success for Client
The Client acknowledges that, in order to promote the Client’s products and services, SmileShop Marketing may convey data, including statistics, including estimates of performance, which illustrate the results obtained by certain SmileShop Marketing clients, or average results obtained by certain groups of SmileShop Marketing clients. SmileShop Marketing declares that such data is, to the best of its knowledge, accurate and that said data has been obtained from credible sources. The Client also acknowledges that such data is conveyed solely for informational purposes, that SmileShop Marketing does not conduct any analysis regarding the Client’s business and that consequently, the results obtained by the Client may vary considerably from client to client.
SmileShop Marketing Warranty; Disclaimer
SmileShop Marketing warrants that it will perform the Services in a diligent, skillful and professional manner, in compliance with applicable law and industry standards, and according to the Service descriptions set forth in the applicable CAP. Except as expressly provided in the section, the Client acknowledges and agrees that SmileShop Marketing makes no representations or warranties of any kind, whether expressed or implied, including any implied warranty of merchantability, fitness, condition, design or operation, including for a particular use, of the Services. The Services are offered on an “AS IS” basis. The Client’s exclusive remedy for any claim arising under this Agreement or for any error or omission in the Services shall be for SmileShop Marketing to use commercially reasonable efforts to cure the breach at its expense. In order to preserve its rights hereunder, the Client must notify SmileShop Marketing of any errors or omissions within thirty (30) days of SmileShop Marketing having provided the service(s). Should the Client not notify SmileShop Marketing within said notice period, the Client shall forfeit any rights related to such errors or omissions.
SmileShop Marketings’ liability will be limited to the sum of the fees actually paid pursuant to this Agreement during the last twelve (12) months. SmileShop Marketing shall not in any event be liable to the Client for third-party damages or claims; or for special, punitive or indirect damages
Limitation of Liability
SmileShop Marketings’ liability hereunder will be limited to the sum of the fees actually paid by the Client under the applicable CAP governing the Services which give rise to any such liability, during the twelve (12) months immediately preceding the events precipitating said liability. SmileShop Marketing shall not in any event be liable to the Client for third-party damages or claims; or for special, punitive or indirect damages. The parties acknowledge and agree that this limitation of liability is an essential basis of the bargain for this Agreement, and absent the same SmileShop Marketing would be unable to perform the Services contemplated herein or in any applicable CAP for the charges agreed upon.
The Client will indemnify, defend, and hold harmless SmileShop Marketing, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each a “SmileShop Marketing Indemnitee”) from and against any and all loss incurred by a SmileShop Marketing Indemnitee based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each a “Claim”) made or brought against any SmileShop Marketing Indemnitee with respect to any advertising, branding, research or other products or services which SmileShop Marketing prepared or performed for the Client hereunder to the extent that such Claim relates to an act or omission of the Client or its representatives including, without limitation:
- the inaccuracy of any information supplied by the Client or its agents to SmileShop Marketing including, without limitation, information concerning the Client’s products and services, the products or services of the Client’s competitors or the Client’s product or service category;
- the non-compliance with any applicable laws by Client or its representatives;
- the use of any marketing, branding, research, advertising, packaging, trademark, software, hardware or other materials, or components thereof, furnished by the Client or its agents to SmileShop Marketing to be included in any materials or media placements;
- the use of any materials or data provided or created by SmileShop Marketing and changed by the Client or its agents or used in a manner different from that agreed by the parties;
- risks or restrictions known by the Client where the Client nonetheless elected to proceed;
- death, personal injury, or product liability (including health and safety) claims or actions arising from the use of the Client’s products and services;
- the unauthorized or improper use of materials or the marks by the Client, the Client’s designees, licensees, distributors, franchisees or the Client’s affiliates;
- claims brought by the Client’s employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom the Client has a contractual or supplier relationship;
- allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right;
- any material breach of the terms of this Agreement by, or any act of omission of, the Client or its agents or employees relating to media commitments made by SmileShop Marketing pursuant to the Client’s approval as provided for herein; and
- the negligence, gross negligence, bad faith, or intentional or willful misconduct of the Client or its employees, agents or the Client affiliates.
Modifications to Agreement
The Client acknowledges that SmileShop Marketing may, from time to time, update these Terms and Conditions and products and services offered. SmileShop Marketing may modify this Agreement and Services, at its sole discretion, by posting an updated version of these Terms and Conditions. Client’s continued use of the products and Services constitutes an agreement to the Terms and Conditions then in force. In the event of any material changes to these Terms and Conditions, we will post a notification on the website or, in our discretion, may notify you directly of such change.
The Agreement may not be otherwise amended without the written Agreement of SmileShop Marketing.
SmileShop Marketing may assign this Agreement or any of its obligations and any payment due under it to an affiliate or third-party vendor without prior written consent from the Client.