Terms in these Terms and Conditions shall have the meaning given to them here or in the Membership Proposal signed by you.
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’ 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.
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.
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.
The Client agrees to pay SmileShop Marketing’ 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.
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:
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:
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.
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:
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’ 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.
The Client acknowledges that it is not authorized to use SmileShop Marketing’ 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’ 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
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 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.
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.
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’ undertaking to offer the CAP for the charges agreed upon.
In event of any error or omission in advertising services, SmileShop Marketing’ 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.
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’ 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.
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 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.
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.
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.
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.
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.
This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
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.
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.
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.
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