Membership Terms and Conditions

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 sell advertising services for the indicated monthly fee under Client Approved Program (the “CAP”) outlined in your Membership Proposal 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 Marketing’s interests.

Further, the Client acknowledges that all products and services pricing are subject to change and that pricing may be increased on an annual basis. Smileshop Marketing shall provide the Client with a minimum of fourteen (14) days’ notice for same.

TERM

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 agrees to accept such additional or extension of products and services, if applicable, only upon execution of a mutually agreed-upon revised CAP.

COLLABORATION

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.

Should the Client not provide all requisite information or fail to respect stipulated product fulfillment timelines, then billing during this time shall continue by Smileshop Marketing.

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.

 LATE CHARGES

The Client agrees to pay Smileshop Marketing’s invoice on the specified payment schedule by credit card. An interest rate of 19.8% per annum, compounded monthly, applies to any outstanding balance. Notwithstanding the foregoing, should the outstanding balance not be paid in full within fourteen (14) days of receiving notice, it will constitute a material breach of this Agreement and Smileshop Marketing reserves the right to terminate this Agreement in accordance with the Termination section below and shall be entitled to seek further equitable relief, including but not limited to pursuing legal recourse, if necessary.

TERMINATION

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:

1. 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 foregoing, non-payment or partial payment by the Client contrary to the agreed payment schedule shall constitute a material breach;
2. Voluntary or involuntary cessation of business by the Client by way of bankruptcy or otherwise; or
3. Reproduction, by the Client, of either a portion of or in its entirety any service created by Smileshop Marketing in any other media without Smileshop Marketing’s explicit consent.

Should Smileshop Marketing terminate the Agreement as outlined above, the Client shall immediately pay Smileshop Marketing for all services rendered and work performed up to the effective date of termination. Additionally, fees, charges, and expenses relating to the remainder of the Agreement Term shall become immediately due and payable by the Client to Smileshop Marketing. 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 (days) notice. 

By the Client

The Client can terminate this Agreement after the applicable Minimum Term by providing 30 days written notice either by physical or electronic medium to Smileshop Marketing. The Minimum Term for different products and services is as follows:

• For Websites, the Minimum Term is 24 months term from the Commencement Date set out in the CAP. 
• For Enhanced Services, the Minimum Term 90 days from the Commencement Date set out in the CAP or from the start date set out in the Client’s invoice (as applicable).

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. 

If the Client terminates this Agreement prior to the Minimum Term, the Client shall immediately pay Smileshop Marketing for the amount listed in the Investment Column of “CAP” of the product or service multiplied by the number of months remaining in the duration column of the “CAP” calculated from the Commencement Date (or the corresponding amount for any Enhanced Services). The Client shall be entitled to seek further equitable relief, if required.

CONFIDENTIALITY

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:

1. is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party;
2. was previously known to the receiving party or rightly received by the receiving party from a third-party;
3. is independently developed by the receiving party; or
4. 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 explicit consent. For example, access to the Client’s social media accounts by Smileshop Marketing, its subsidiaries, affiliated companies, respective employees, subcontractors or agents shall only be performed for the purposes of rendering services as stipulated in the CAP agreed herein. The Client’s and Smileshop Marketing’s respective Proprietary or Confidential Information shall remain the sole and exclusive property of that particular party. 

The Client and Smileshop Marketing agree that the use or disclosure by the other for purposes other than as provided herein shall constitute a material breach of this Agreement and the non-disclosing party may be entitled to equitable relief. 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 Marketing’s name or any of its trademarks without the prior written consent of Smileshop Marketing The Client also acknowledges that Smileshop Marketing owns the intellectual property rights related to all advertising services. The Client undertakes not to reproduce the same without Smileshop Marketing’s 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 their graphics and content. All other items shall remain the intellectual property of Smileshop Marketing

PRIVACY PROVISIONS

Any personal information provided by Client will be used to enable Smileshop Marketing to meet its obligations under this Agreement and to provide the CAP agreed herein. Personal information may be shared with affiliates, agents or contractors of Smileshop Marketing in connection with the services that these individuals or entities perform for Smileshop Marketing in connection with the products and services to be provided to the Client. Smileshop Marketing’s written agreements with such affiliates, agents and contractors ensure that personal information can only be used for the purposes for which it was shared and that these affiliates, agents and contractors handle the personal information in accordance with Smileshop Marketing’s Privacy Policy. Some of Smileshop Marketing’s affiliates, agents or contractors are located in the United States of America and Canada. As such, personal information may be subject to foreign laws, which may require disclosure of personal information to government agencies in the United States of America and Canada. Client warrants that is has obtained all required consents and provided all required notices necessary to support the collection, use, and disclosure of personal information as contemplated herein.  Please see Smileshop Marketing’s Privacy Policy and Terms and Conditions for more information on our privacy practices.

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 CLIENT’S 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 products and services, Smileshop Marketing may convey data, including statistics, 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.

LIMITATION AND EXCLUSIONS

The Client acknowledges that Smileshop Marketing provides a very large number of advertising services and that errors may thus occur. Smileshop Marketing cannot provide services, on an economic basis, without the benefit of a limitation of liability clause. Consequently, the Client also acknowledges that such a limitation of liability clause is a material basis of this Agreement, that such a limitation of liability constitutes an essential consideration of Smileshop Marketing’s undertaking to offer the CAP for the charges agreed upon.

In event of any error or omission in advertising services, Smileshop Marketing’s liability will be limited to the sum of the charges actually paid pursuant to this Agreement for the services at issue. The Client acknowledges that the present limitation of liability equally applies to the third-party vendors of Smileshop Marketing, if applicable. 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.

LIMITATION OF LIABILITY

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 and failing that, Smileshop Marketing’s 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.

INDEMNITY

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:

1. 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;
2. the non-compliance with any applicable laws by Client or its representatives;
3. 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;
4. 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;
5. risks or restrictions known by the Client where the Client nonetheless elected to proceed;
6. death, personal injury, or product liability (including health and safety) claims or actions arising from the use of the Client’s products and services;
7. 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;
8. 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;
9. allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right;
10. 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
11. 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.

The Agreement may not be otherwise amended without the written Agreement of Smileshop Marketing.

ASSIGNMENT

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.

The Client may not assign this Agreement without prior written consent from Smileshop Marketing; however, Smileshop Marketing shall not unreasonably withhold consent.

DISPUTES AND GOVERNING LAW 

This Agreement is governed by the laws of Alberta, Canada and the parties attorn to the exclusive jurisdiction of the courts of Alberta, Canada to resolve any disputes pursuant to this Agreement. Should any disputes arise between the parties, they shall reasonably cooperate and work together to resolve such dispute for 30 days from notice of the dispute. If the dispute remains unresolved during that time, the parties may pursue legal action.

SEVERABILITY CLAUSE

Wherever possible each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under any such law, such provision shall be limited to the minimum extent necessary to render the same valid or shall be excised from this Agreement, as the circumstances require, and this Agreement shall be construed as if said provision had been incorporated herein as so limited or as if said provision had not been included herein, as the case may be, and enforced to the maximum extent permitted by law, and the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in order that the transactions contemplated by this Agreement can be consummated as contemplated.

WAIVER

The failure of Smileshop Marketing to seek redress for violation of or to insist upon the strict performance of any term, covenant or condition of this Agreement shall not constitute a waiver with respect thereto or with respect to any subsequent act.

SUCCESSORS AND ASSIGNS

This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

PARAGRAPH HEADINGS AND CAPTIONS.

Paragraph headings and captions contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of this Agreement or any provision thereof.

FORCE MAJEURE

Neither the Client nor Smileshop Marketing shall be liable to the other for any failure, inability, or delay in performing hereunder if caused by any cause beyond the reasonable control of the party so failing, including, without limitation, an Act of God, war, strike, pandemic or fire; but due diligence shall be used in curing such cause and in resuming performance.

ENTIRE AGREEMENT

This Agreement and the Schedules attached hereto constitute the entire agreement between the Client and Smileshop Marketing relating to the subject matter hereof and supersedes any prior agreement or understandings between them.