Effective Date: March 18, 2020
These Periphery Digital Inc. terms and conditions (“Terms and Conditions”) are entered into between Periphery Digital Inc. (the “Agency”) and its client (the “Client”).
1.1. Agency Background Materials means the deliverables created or developed by the Agency prior to providing the Services, independently of the Services, or in the course of providing the Services but provided they are capable of generic application, and in which the intellectual property rights are owned by the Agency;
1.2. Agency Foreground Materials means the deliverables created or developed by the Agency on a customized basis for the Client in the course of providing the Services;
1.3. Agreement means any Statement of Services, Media Plans, Change Orders, documents or emails incorporated by reference or appended to the Agreement, these Terms and Conditions and any other terms and conditions agreed to between the Agency and the Client;
1.4. Change Order means a mutually agreed insertion order for services provided in addition to the Statement of Services and Media Plans, and which incorporates these Terms and Conditions;
1.5. Confidential Information means non-public information that a party to this Agreement (the “Disclosing Party”) designates as being confidential to the party that receives such information (the “Receiving Party”) or which, due to the nature of the information disclosed or the circumstances surrounding disclosure, ought to be treated as confidential by the Receiving Party and includes without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party software or hardware products, Disclosing Party’s marketing or business plans, policies or practices, financial information, pricing information, sales information, customer information, operating information, technical information, personal information and information received from others that the Disclosing Party is obligated to treat as confidential; but does not include information that is or subsequently becomes publicly available without the Receiving Party’s breach of any obligations owed to the Disclosing Party; information already in the possession of or available to the Receiving Party at the time of disclosure by the Disclosing Party; information that is or subsequently becomes known to the Receiving Party from a source other than the Disclosing Party other than by a breach of an obligation of confidentiality owed to the Disclosing Party; and information independently developed by the Receiving Party;
1.6. Intellectual Property Rights means the following rights, wherever in the world enforceable including all reversions and renewals; any patents including any applications for the same; any trademarks (whether or not registered) including any applications for registration of the same; copyright or design rights (whether registered or unregistered including where applicable any applications for the same); database rights; any goodwill in any trade or service name, trading style or get-up and dress; and any and all other intellectual property or proprietary rights;
1.7. Media Plan means the media placement and purchases approved by both parties from time to may which may specify: (i) the vendor, (ii) the term of any campaigns, (iii) the status of any campaigns, (iv) the price(s) for such deliverables, (iv) any campaign management and service fees; and any additional terms and conditions;
1.8. Statement of Service(s) means the services approved by both parties from time to time which may specify: (i) the type(s) and amount(s) of deliverables, (ii) the price(s) for such deliverables, (iii) any media placements and purchases; (iv) the term for the services; and may also specify, without limitation, reporting requirements, any special ad delivery scheduling and/or ad placement requirements and any additional terms and conditions;
1.9. Retainer(s) means the monthly amount due and payable on the 1st of every month by the Client to the Agency for the provision of the Services;
1.10. Services means all services which the Agency is engaged to perform for the Client as set out in a completed and mutually executed Statement of Services, Media Plans, Change Orders or as confirmed in writing between the Agency and the Client;
1.11. Set-Up Fee means the one-time fee payable by the Client to the Agency for the set-up and registration of a new WeChat account;
1.12. Third Party Materials means any materials in any deliverables created for the Client by the Agency which are owned and licensed by a third party;
1.13. Vendor(s) means print and digital media owners, publishers, exchanges, platform providers, search engines, ad-servers, campaign partners, and related technology and data providers including, without limitation, affiliates or partners of the Agency as well as online or other media research providers or social media platforms (e.g. Facebook, WeChat, Weibo and Tencent Holdings Ltd.);
1.14. Vendor Materials means data, equipment, software, documents and any other materials or information owned by or licensed to the Vendor that are provided by the Vendor to the Agency in connection with the provision of the Services.
2. The Services
2.1. The Agency will provide to the Client the services as set out in the Statement of Services.
2.2. The Client will have ten (10) business days to review and approve the Statement of Services. If the Statement of Services is sent by email, it will be deemed to have been received by the Client on the same day as it was sent.
2.3. All quotes and fee estimates provided by the Agency are valid for thirty (30) days only and may be subject to change afterwards.
2.4. The Agency may provide the Client monthly reports on the performance of the Services.
3. Additional, Rushed, and Limited Services
3.1. The Client may request the Agency to perform additional services beyond what is provided in the Statement of Services or Media Plans (the “Additional Services”). The agreement for the Additional Services will be set forth in a Change Order or in email correspondence between the Agency and the Client and will be form a part of this Agreement. The Client must provide written confirmation prior to the commencement of the Additional Services.
3.2. If the Client requests services that are to be completed by the Agency within five (5) to ten (10) business days (the “Rushed Services”) they will subject to a surcharge. The agreement for the Rushed Services will be set forth in a Change Order or in email correspondence between the Agency and the Client and will form a part of this Agreement. The Client must provide written confirmation prior to the commencement of the Rushed Services. The Client may not cancel the Rushed Services once confirmation is provided. Payment for the Rushed Services is immediately due and payable upon the Client’s receipt of the invoice for such Rushed Services.
3.3. If the Services are for translation, design, website development (the “Limited Services”), the Client will pay a fifty (50%) percent non-refundable deposit of the estimated fee prior to the commencement of the Limited Services. The Client agrees and understands that the estimated fee is not final and the balance due may vary by twenty (20%) percent. The remaining balance will be immediately due and payable upon the Client’s receipt of the invoice for such Limited Services.
4. Media Purchases and Placements
4.1. The Agency will book the media and ad placements as proposed in the Statement of Services or in the Media Plan. If a Media Plan is provided to the Client, the Client will have ten (10) business days to review and approve it. If the Media Plan is sent by email, it will be deemed to have been received by the Client on the same day as it was sent.
4.2. Upon the Client’s written acceptance and confirmation of the Media Plan, all media bookings are deemed to be confirmed and cannot be cancelled.
4.3. The Client agrees and acknowledges the Agency cannot guarantee the availability of any media or ad placements. If any media or ad placements proposed by the Agency become unavailable or are cancelled for any reason, the Agency will have the right to select a similar Vendor, media or ad placement to provide the Services and to reallocate media spend accordingly, without requiring the Client’s prior approval.
5.1. The Client’s written acceptance of the Services, or the commencement of the Services will constitute acceptance of these Terms and Conditions.
5.2. Once accepted by the Client, the Agreement will constitute the entire understanding between the parties and will replace any and all previous agreements, arrangements, representations and contracts, whether verbal or in writing, express or implied. No variation of this Agreement will be valid unless it is in writing and signed by both parties. The Agency may insist upon strict compliance with these Terms and Conditions, despite any previous custom, practice or course of dealing to the contrary.
5.3. The Agency reserves the right to update and revise these Terms and Conditions from time to time without notice to the Client.
5.4. In the event of any inconsistency between the Statement of Services, the Media Plans, the Change Orders, any documents or emails incorporated by reference or appended to the Agreement, or any other terms and conditions agreed to between the Agency and the Client, the Terms and Conditions will prevail.
6.1. The Agency is an independent contractor of the Client and this Agreement does not create any association, partnership, joint venture, employer or employee relationship between the Agency and Client for any purpose.
6.2. The Client, and its agents and employees, will cooperate with the Agency and will provide to the Agency all documents, designs, photos, logos, content, information, approvals, administrative/backend access, and any other material deemed necessary by the Agency (the “Materials”) within ten (10) business days of the Agency’s request, in an organized manner.
6.3. If the Client or any of its agents or employees prevents or delays the Agency from performing or completing the Services for more than ten (10) business days, the Agency may suspend any Services or extend any previously agreed upon deadlines. The Client will pay to the Agency any additional fees and costs resulting from such extension or delay. Once the Materials are received by the Agency and the Services are reactivated, the Services will be rescheduled based on the Agency’s current workload and availability, determined in its sole discretion.
6.4. If the Client does not fulfil its obligations under the Agreement, then (without prejudice to the Agency’s rights and remedies) the Agency will be relieved of its obligations to the Client to the extent that Agency is prevented from performing the Services in accordance with the Agreement and will not be liable for any damages, costs, charges or losses sustained by the Client arising directly or indirectly from any failure of the Client to fulfil its obligations under this Agreement.
7. Dealing With Vendors
7.1. The Client understands and acknowledges that the Agency’s performance of the Services is subject to the terms and conditions of the Vendors, which are non-negotiable and may be amended from time to time.
7.2. The Client agrees and acknowledges that the Vendors may impose restrictions on the type of activity and content that can be displayed on their platforms. The Client will abide by such restrictions and agrees that the Agency will not be responsible for any activities undertaken by the Client or that are approved by the Client that violates such requirements.
7.3. The Client agrees and acknowledges that the Agency’s provision of the Services is dependent on a Vendor’s prior authorization and approval.
7.4. The Agency will not be responsible for any loss or damage if any of the Client’s campaigns, projects, or Materials are delayed or excluded from any Vendor platform for any reason.
7.5. The Agency will not be liable in respect of any act or omission of any Vendor.
8. Approvals and Authority
8.1. The Agency will not provide the Services nor incur any third party expenditure for which the Client will be invoiced, without first obtaining the Client’s written approval.
8.2. The Client will accept and approve all Services by signing and returning the required document, or by providing written confirmation, whichever the case may be.
8.3. The Client’s written acceptance and approval will constitute the Agency’s authority to provide the Services.
8.4. The Client grants to the Agency the authority to do any of the following:
a) To make changes to the Services for the purposes of optimization;
b) To accessing all existing and past data, for analysis and tracking purposes;
c) To email existing and previously engaged clients for the purposes of Lookalike audiences.
9. Revisions and Cancellations
9.1. The Agency may revise or cancel any of the Services, at its sole discretion. The Agency will advise the Client within a reasonable time of such revisions or cancellations.
9.2. The Client may request the Agency to revise the Services. The Agency will take all reasonable steps to comply with any such request provided that the Agency is able to do so within its contractual obligations to its Vendors. If the Client requests more than two (2) revisions from the Agency, the Agency reserves the right to charge the Client additional fees.
9.3. No revisions to the Services are valid unless confirmed by email by each party to this Agreement.
9.4. Subject to Clause 4.2, the Client may cancel any of the Services, by providing the Agency at least fourteen (14) days’ prior written notice. Cancellation of the Services will only be effective upon the Agency sending a confirmation email.
9.5. In the event of any such cancellation of the Services:
a) The Client will reimburse the Agency for any charges or expenses incurred by the Agency; as a result of the cancellation;
b) The Client will pay to the Agency all sums due up to the effective date of cancellation; and
c) The Agency will refund to the Client any un-used media spend or any remaining retainer.
9.6. If the Client makes any unauthorized revisions or cancellations, the Agency will not be expected to fulfil any performance based obligations, and will not be held responsible for any adverse effects including any damages, loss, liability, costs and expenses that may result from such revision or cancellation.
10. Remuneration and Payment
10.1. The Client will pay the following fees, if applicable, prior to the commencement of any We Chat services:
a) The Set-Up Fee; and
b) WeChat account design and translations fees.
10.2. Subject to Section 3.2, 3.3 and 10.1, the Client will pay the Agency for the Services according to the payment and Retainer terms as set out in the Statement of Services, the Media Plans, the Change Orders or as agreed upon between the Agency and Client.
10.3. GST is applicable to all fees. All invoices are due and payable in full as at the date of the invoice.
10.4. The Client may pay the invoices by way of cheque, credit card or EFT. Credit card payments are subject to an additional 3% charge after tax.
10.5. The Agency will charge interest on any unpaid balance commencing 30 days after the date of the invoice at the rate of 4% per month until payment is made in-full and may suspend or cancel any of the Services. If the Services are reactivated, they will be rescheduled based on the Agency’s current workload and availability, determined in its sole discretion.
10.6. The Client may submit invoice inquiries to the Agency by email within 14 days of the invoice date. The Agency will not disclose to the Client any Vendor invoices or any other information relating to Vendor costs and fees.
10.7. All Set-Up Fees, WeChat account design and translations fees, campaign management and service fees are non-refundable.
11. Ownership of Material
11.1. The Agency acknowledges the ownership of all Materials will remain vested in the Client or its licensors. The Client grants to the Agency a non-exclusive licence during the term of the Agreement to use the Materials for the purposes of providing the Services.
11.2. Subject to the Agency receiving payment of all sums payable to it under the Agreement, the Agency will assign at the end of this Agreement to the Client all of the Intellectual Property Rights in the Agency Foreground Materials capable of assignment.
11.3. The Client agrees and acknowledges that all Intellectual Property Rights in the Agency Background Materials are owned by and remain the sole property of the Agency.
11.4. The Client acknowledges the ownership of any Third Party Materials and/or Vendor Materials will remain vested in the third party and/or Vendor. Subject to the Agency receiving payment of all sums payable to it under this Agreement, the Agency will take reasonable steps to procure a license to use the Third Party Materials or the Vendor Materials to the extent that they are required in order for the Client to use the Agency Foreground Materials.
11.5. The Agency reserves the right to use any Agency Foreground Materials for the purpose of promoting its business. The Agency may also publicize the fact the Client is the Agency’s client.
12. Confidential Information
12.1. Each party will not make use of any Confidential Information disclosed by a Disclosing Party except in accordance with the terms of this Agreement, and all such Confidential Information will be used only for the purposes of the Services.
12.2. Each party will take commercially reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information of a similar nature, to keep confidential the Confidential Information of the Disclosing Party.
12.3. Each party will use commercially reasonable efforts to ensure these obligations are observed by its employees and any third parties to whom the Confidential Information has to be disclosed in order to enable that party to carry out its obligations under this Agreement.
12.4. The Receiving Party may disclose Confidential Information of the Disclosing party in accordance with a judicial or other governmental order, provided that the Receiving Party gives the Disclosing Party reasonable notice prior to such disclosure to allow the Disclosing Party a reasonable opportunity to seek a protective order or equivalent.
12.5. The Client acknowledges that nothing in this Agreement will affect the Agency’s right to use as it sees fit any general marketing or advertising intelligence gained by the Agency in the course of its duties or during the provision of the Services.
13. Warranties and Indemnities
13.1. Each party warrants that it is authorized to enter into and perform this Agreement and this Agreement does not conflict with any other agreement to which the party is bound.
13.2. The Agency makes no representations or warranties as to the effectiveness of any marketing or advertising campaign or in respect of any other aspect of the Services.
13.3. The Client represents and warrants that to the best of its knowledge, information and belief, all Materials supplied to the Agency are true and accurate, not contrary to any applicable law (as may be amended from time to time), and do not contain any derogatory, obscene, offensive, racist, pornographic, demeaning or politically sensitive material or any other content which may negatively impact the Agency. If the Agency reasonably believes the Materials contain any of the content referred to above, it may, at its sole discretion, decide not to incorporate the Materials into any deliverables and may immediately remove such materials from any Vendor platforms.
13.4. The Client warrants that the Materials provided to the Agency for inclusion in the Services are owned by the Client, or that the Client has received the permission of the rightful owner(s) to use the Materials and that the Materials do not infringe up the rights of any person or entity.
13.5. Without limiting any other obligations of the Client provided herein, the Client agrees to indemnify, defend and hold harmless the Agency, and its officers, directors, shareholders, employees and their respective successors and assigned, if any, from and against all claims, demands, actions, damages, loss, liabilities, fines, orders, penalties, costs, judgements, and expenses whatsoever (including any reasonable legal fees and disbursements) which may be paid by, incurred by, or asserted against the Agency arising from or in connection with:
a) The breach or non-performance by the Client of any of its obligations or warranties hereunder; or
b) The negligent acts or omissions or wilful misconduct of the Client, its employees, contractors or agents;
except only to the extent of the foregoing arising from the gross negligence or wilful misconduct of the Agency, or the breach or non-performance by the Agency of any of its obligations or warranties hereunder.
13.6. The Agency will have the sole right to defend and settle any claim using counsel of its choosing and the Client will reasonably cooperate with the Agency in the defense and settlement of any claim.
14. Limitation of Liability
14.1. THE AGENCY WILL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY:
a) LOSS OF ACTUAL OR ANTICIPATED INCOME OR PROFITS, LOSS OF CONTRACTS, LOSS OR CORRUPTION OF DATA; OR
b) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSS OF ANY KIND IN EACH CASE, HOWSOEVER ARISING AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, WHETHER OR NOT SUCH LOSS OR DAMAGE IS FORESEEABLE OR NOT.
14.2. IN ANY EVENT, THE MAXIMUM AGGREGATE LIABILITY OF THE AGENCY UNDER THIS AGREEMENT WILL IN NO CIRCUMSTANCES EXCEED THE FEES PAID OR PAYABLE TO THE AGENCY HEREUNDER DURING THE PRECEEDING SIX (6) MONTHS.
14.3. THIS AGREEMENT STATES THE FULL EXTENT OF THE AGENCY’S OBLIGATIONS AND LIABILITIES IN RESPECT OF THE PERFORMANCE OF THE SERVICES. THE PARTIES AGREE THAT ANY CONDITION, WARRANTY, REPRESENTATION OR OTHER TERM CONCERNING THE PERFORMANCE OF THE SERVICES WHICH MIGHT OTHERWISE BE IMPLIED INTO OR INCORPORATED IN THIS AGREEMENT, WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, IS EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
15.1. Either party may terminate this Agreement without cause by providing the other party with at least three (3) weeks’ prior written notice.
15.2. Either party may terminate this Agreement immediately without written notice to the other if the other party:
a) Is in material breach of any of the terms of this Agreement and, in the case of a breach capable of remedy, fails to remedy such breach within fifteen (15) days of receipt of written notice giving full particulars of the breach and of the steps required to remedy it; or
b) Either party is subject to winding-up or has had a receiver or administrator has appointed to manage its affairs; or
c) Ceases or threatens to cease, to carry on business.
15.3. The parties’ rights, duties and responsibilities will continue in full force during any agreed period of notice and the Client will pay to the Agency all sums due in respect of the Services and any expenses and charges incurred by the Agency until the effective date of termination.
15.4. Upon termination of this Agreement, the Agency will be relieved of all further obligations hereunder and will provide to the Client a final report and, if applicable, all login details and passwords for the Agency Foreground Materials.
15.5. Sections 12 (Confidential Information), 13 (Warranties and Indemnities) and 14 (Liability) will survive the termination of this Agreement.
16. Force Majeure
16.1. Neither party will be liable for any delay or failure to perform its obligations under this Agreement where such delay or failure is due to fire, flood, explosion, war, embargo, terrorism, labour disputes, governmental action, acts of public authority, Acts of God or any other cause beyond its control
17.1. The failure of either party to enforce or to exercise at any time or for any period, any term or any right pursuant to this Agreement will not be construed as a waiver of any such term or right and will in no way affect that party’s right later to enforce or exercise it.
18.1. If any provision of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid or unenforceable then such invalidity or unenforceability will not affect the other provisions of this Agreement which will remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision which achieves to the greatest extent possible the same effect as would have been achieved by the invalid or unenforceable provision.
19.1. Neither party will assign, transfer, charge or deal in any other manner with this Agreement or any of its rights under it without the prior written consent of the other party, such consent will not to be unreasonably conditioned, withheld or delayed.
20.1. Any notice which either party is required by this Agreement to serve on the other party will be sufficiently served if sent to its specified email address.
21. Governing Law and Jurisdiction
21.1. This Agreement will be governed by the laws of the province of British Columbia and the laws of Canada applicable therein.