Terms and conditions

In this Agreement, unless the context otherwise requires, the following terms have the following meanings:

  1. “Agreement” means this agreement and any schedule, appendix, addendum or amendment to this agreement which is signed by the Parties;
  2. “Business Day” means any day, other than Saturday, Sunday or any statutory holiday in the Province of Alberta;
  3. “Company IP” means all deliverables and intellectual property which is created by the Consultant that is based upon, embodies or otherwise incorporates the Company Materials;
  4. “Company Materials” means all content, documentation, data, images, text, software, web pages, artwork, trademarks, tradenames, logos, graphics, video, files and other material, however stored and/or encoded, that is supplied by the Company to the Consultant for the purposes of the Consultant performing the Services;
  5. “Confidential Information” means any business, marketing, technical, scientific or other information disclosed by a Party and relating to such Party’s operations, products, designs, plans, strategy, customers, business opportunities, finances, research, development, know-how, trade secrets or employees, or relating to the employees, customers or suppliers of a Party,, but does not include any information which is or becomes available to the public through no fault of the other Party or which is disclosed to the other Party by a third Party who has lawfully obtained such information and owes no obligation of confidentiality with respect to such information;
  6. “Consultant Material” means all content, documentation, data, images, text, software, web pages, artwork, trademarks, tradenames, logos, graphics, files and other material, however stored and/or encoded, that is supplied by the Consultant to the Company for the purposes of the Consultant performing the Services;
  7. “Fees” means the fees set out in the Agreement and any other fees or amounts upon which the Consultant and the Company may agree from time to time in writing, including, but not limited to, pre-approved expenses of the Consultant;
  8. “Hardware” means all computer equipment, supplies and accessories owned or operated by the Company;
  9. “Interest” means the additional amount charged on invoices that are not settled by their respective due dates, compounded monthly at 12%.
  10. “Nominee(s)” means those individuals appointed by the Consultant to perform Services;
  11. “Parties” means the Company and the Consultant, and “Party” means one of them, as applicable;
  12. “Services” means the services set out in the Agreement and any other services, duties or responsibilities that the Company and the Consultant may agree upon in writing from time to time; and
  13. “Software” means any computer software (including software platforms) owned, licensed to or operated by the Company.

Engagement

The Company hereby agrees to retain the Consultant to provide the Services. The Services may be performed by Nominees as appointed from time to time by the Consultant, in its sole discretion.

Payment

Upon commencement, the Consultant will invoice the Company 20% of the Fees, plus applicable taxes, which will be applied to the final invoice. The Consultant will thereafter invoice the Company monthly for work in progress. The Company will pay the Consultant within {Order_Payment_Terms} days of receipt of an invoice. 

The Company will additionally pay to the Consultant Interest Fees of 12% of the invoice total amount, compounded monthly, from the invoice due date when invoices are not paid by invoice due date.

Term

The term of this Agreement (the “Term”) is from the Effective Date until terminated in accordance with the provisions of this Agreement.

Amendments to Services

If the Company wishes at any time to request a change in the Services, or if the Company requests that the Consultant provide services outside the scope of the Services, the Company will, unless otherwise agreed between the Company and the Consultant, prepare a written change request. The Consultant will evaluate and respond to any change request promptly and will advise the Company in writing of any impact on the cost of and delivery schedule for any Services as a result of the proposed change. Upon confirmation of acceptance from the Company, the Consultant will proceed with the change on the terms of which the Company was advised, and the Services shall be deemed to have been amended accordingly. The Consultant reserves the right to charge the Company at its standard rates for any time spent evaluating and responding to a change request which the Company elects not to implement. The Consultant will have no obligation to implement a change in the Services unless such change is first agreed upon in writing by the Company and the Consultant.

Delays

If the timetable for performance of any Services is delayed as a result of a delay by the Company in the performance of its responsibilities as set out herein, or as the result of any act of God, or as the result of any change in the Services to which the Consultant and the Company have agreed, or as the result of any factor which is beyond the reasonable control of the Consultant, then the timetable for the performance of the Services shall be extended for the period of time that the Services have been delayed as a result of such factor or events, with no liability arising for either Party as a result of such delay.

Overtime

When required by the customer, evening and weekend work will be charged at 1.5 times.

Company Responsibilities

The Company will be responsible for the following, in addition to any specific responsibilities agreed upon from time to time in writing between the Company and the Consultant: (a) responding to requests for relevant information on a timely basis; (b) ensuring that sufficient Company representatives are present as the Consultant may reasonably require in connection with the performance of the Services; (c) providing the Consultant with timely and accurate information and documentation, as reasonably required by the Consultant to perform the Services; (d) making available to the Consultant personnel familiar with the Company’s requirements and with the expertise necessary to permit the Consultant provide the Services; (e) maintaining a proper operating environment for Software and Hardware, if the maintenance of such proper operating environment may affect the performance of the Services; and (f) providing the Consultant with access to systems and tools, as reasonably required by the Consultant to perform the Services.

Right to Hire

At Creative Sparq we invest heavily in our people. In consideration of the opportunity to hire an employee or contract an individual that has been trained, supervised, and furnished by the Consultant within 1 year of the termination of this agreement, the Company agrees to pay the Consultant $75,000 or other mutually-agreed amount. In the event that the Company intends to employ or contract an individual that has been furnished by Consultant under this engagement, the Company will provide ninety (90) days notice.

Nature of relationship

The relationship of the Consultant to the Company shall be that of independent contractor and not of employment, partnership or joint venture.  Neither Party shall have, nor represent that it has, any right or authority to bind the other, or to assume or create any obligation or responsibility expressed or implied on behalf of the other or in the other’s name. 

Exclusive Control, direction and management

The Consultant shall have the authority to exercise exclusive control, direction and management over the Services, to carry out the Services under its own superintendence and at its own risk, and to provide the Services according to its own means, methods and location.

Intellectual Property

Unless specifically agreed to in writing, the Company acknowledges and agrees that all intellectual property of every nature and kind whatever, created or arising pursuant to or in connection with the performance of the Services, shall be and remain the sole and exclusive property of the Consultant. Notwithstanding the foregoing, the Company shall own all of the Company IP.  In the event that the deliverables and/or Services provided by the Consultant to the Company incorporates the Consultant Materials, the Consultant hereby grants the Company a non-exclusive, perpetual, royalty-free, worldwide license to use the Consultant Materials as reasonably necessary or desirable in order for the Company to use the Services as provided by the Consultant and for no other purpose whatsoever.

Company Materials

The Consultant acknowledges that all Company Materials, and all intellectual property rights of every nature and kind whatever in and to any Company Materials, are the sole property of the Company and, except as specifically agreed in writing by the Company, nothing contained herein shall constitute an assignment or transfer of any such Company Materials, or any intellectual property rights therein, to the Consultant. Notwithstanding the foregoing, the Company hereby grants to the Consultant and the Consultant accepts a limited, non-exclusive, royalty-free, non-transferable, worldwide license to use the Company Materials, during the Term, as reasonably necessary or desirable in order for the Consultant to provide the Services and for no other purpose whatsoever.

Consultant Materials

The Company acknowledges that all Consultant Materials, and all intellectual property rights of every nature and kind whatever in and to any Consultant Materials, are the sole property of the Consultant and, except as specifically agreed in writing by the Consultant, nothing contained herein shall constitute an assignment or transfer of any such Consultant Materials, or any intellectual property rights therein, to the Company.

No Liability

Notwithstanding anything herein contained to the contrary, in no event whatsoever will either Party, its directors, officers, employees, agents, contractors or affiliates, be liable for any claim for: (a) punitive, exemplary or aggravated damages; (b) damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of Company Materials (including computer resources and stored data); (c) indirect, consequential or special damages of any kind; (d) contribution, indemnity or set-off in respect of any claims against the other Party by any third Party; or (e) any damages whatsoever related to software or hardware which is not Software or Hardware.

Limitation on Liability

Without limiting the generality of section 6.1, the Parties agree that, other than in cases of fraud, the maximum total liability of either Party, its suppliers, directors, officers, agents, representatives, shareholders and employees, to the other Party, for any claim whatsoever, under any circumstances, regardless of the cause of action and including without limitation claims for breach of contract, tort, negligence or otherwise, and the other Party’s sole remedy therefore, shall be strictly limited to an award for direct, provable damages not to exceed the Fees paid by the Company to the Consultant pursuant to this Agreement.

Reasonableness of Limitations

The Parties agree that the limitations contained in this section 6 are reasonable in scope and that the terms and conditions of this Agreement have been negotiated taking into account such limitations.

Confidentiality

Except for the specific rights granted by this Agreement, neither Party shall use or disclose any Confidential Information of the other Party. A Party receiving Confidential Information from the other shall use the same degree of care to protect the confidentiality of such Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care, including ensuring that such information is disclosed to employees and agents on a need-to-know basis and that all such employees and agents have agreed in writing not to disclose or use Confidential Information. Within fifteen (15) days of the request of the disclosing Party, and in the disclosing Party’s sole discretion, the receiving Party shall either return to the disclosing Party originals and copies of any Confidential Information and all information, records and materials developed from them by the receiving Party, or destroy the same. Either Party may only disclose the general nature, but not the specific terms and conditions, of this Agreement without the prior consent of the other Party.

Use of companies name and trademarks

Upon the Company’s acceptance and satisfactory completion of the agreement, the Company authorizes the Consultant to use Company’s name, trademarks and logos in the Consultant’s marketing materials.

Insurance

The Company shall, during the term of this Agreement and at its own expense, maintain the minimum insurance coverage as determined by the Company from time to time. Upon the written request by Company, the Consultant shall provide Company with certificates of insurance for each of the foregoing policies within ten (10) business days of such request.

Termination

This Agreement can be terminated in accordance with the following provisions: (a)by either Party giving the other Party 60 days written notice of its intention to terminate this Agreement; or (b) by providing written notice to the other Party in the event of a material breach of this Agreement that is not remedied within Fifteen (15) days of the non-defaulting Party giving written notice to the defaulting Party of such breach.

effect of expiration or termination

Upon termination of this Agreement for any reason whatsoever: (a)the Company shall pay to the Consultant all amounts owing to the Consultant up to and including the date of termination of this Agreement; (b) the Consultant will immediately return to the Company all property of the Company in the Consultant’s possession or control (or in the possession or control of any Nominee); (c) the Company will immediately return to the Consultant all property of the Consultant in the Company’s possession or control; (d) the Consultant shall, and shall cause any Nominee to, at the Company’s option, destroy or return to the Company all Confidential Information of the Company, without retaining copies thereof, and shall provide to the Company a certificate of a senior officer of the Consultant as to such destruction or return; (e) the Company shall, at the Consultant’s option, destroy or return to the Consultant all Confidential Information of the Consultant, without retaining copies thereof, and shall provide to the Consultant a certificate of a senior officer of the Company as to such destruction or return; and (f) all obligations under this Agreement that are intended to survive the termination of this Agreement shall survive and continue in full force and effect for the period intended.

survival

The termination or expiration of this Agreement will not affect the survival and enforceability of any provision of this Agreement which is expressly or impliedly intended to remain in force after such termination or expiration provided that Company or Consultant may assign to its affiliates or an entity formed as a result of a merger, acquisition, amalgamation or other internal reorganisation without consent but on notice to the other Party.

assignment

This Agreement may not be assigned by a Party without the written consent of the other Party, such consent not to be unreasonably withheld or delayed.

notice

Any notices required or permitted to be provided hereunder shall be in writing and shall be deemed to have been received five (5) business days after the post-marked date thereof if sent by registered mail, the next business day following transmission if sent by fax or email, or at the time of delivery if hand-delivered, and shall be addressed to the address listed on the first part of this Agreement.

A Party may from time to time change its mailing address, email address or phone number for service by giving written notice of such change to the other Party.

time of the essence

Time shall be of the essence in connection with this Agreement.

governing law

This Agreement shall be governed by the laws of the Province of Alberta and the Parties irrevocably attorn to the exclusive jurisdiction of the Court of Queen’s Bench of Alberta, Judicial Centre of Calgary.

enurement

This Agreement shall enure to the benefit of, and be binding upon, the Parties hereto and their respective successors and permitted assigns.

invalidity of provisions

Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof.

entire agreement

This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter of this Agreement. There are no warranties, representations or agreements between the Parties in connection with such subject matter except as specifically set forth or referred to in this Agreement.

modification and waiver

This Agreement may not be modified unless agreed to in writing by both the Company and the Consultant. No extension of any time limit granted by a Party shall constitute an extension of any other time limit or any subsequent instance involving the same time limit. No consent by a Party to, nor waiver of, a breach by the other, whether express or implied, shall constitute a consent to or waiver of or excuse for any other different or subsequent breach, unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused.

counterparts

This Agreement may be signed in counterparts and each of such counterparts shall constitute an original document and such counterparts, when taken together, shall constitute one and the same instrument.