1776549 ONTARIO INC., operating as SPIKE MOBILE
hereinafter referred to as “the Company” of the FIRST PART,
WHEREAS the Company carries on the business of selling Mobile Marketing which includes but is not limited to, text message ("SMS") marketing, geo-location/Blue Tooth/ proximity marketing, QR Code marketing and mobile website design, to various types of businesses (the "Business");
AND WHEREAS the Client wishes to purchase from the Company the aforesaid services on and subject to the terms hereinafter set out.
NOW THEREFORE IN CONSIDERATION OF the parties entering into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby irrevocably acknowledged, the parties agree as follows:
1. Agreement and Term
(1) The Client hereby agrees to purchase from the Company, and the Company hereby agrees to provide to the Client:
(A) text message (SMS) marketing servicesas outlined in Schedule "A" hereto (the "Services") for the Initial Term as hereinafter defined.
(B) Geo location/Blue Tooth proximity marketing, QR Code marketing and mobile website design (the "Other Services") at such time and on such terms as the parties may hereinafter agree to.
The initial term of this Agreement shall commence on the initial purchase date (the "Initial Term").
(2) If the Client does not wish to extend this Agreement beyond the Initial Term, the Client shall deliver written notice thereof to the Company no less than twenty (20) days prior to the end of the Initial Term. If the Agreement is not terminated as aforesaid at the end of the Initial Term, the term of this Agreement shall, at the end of the Initial Term, extend on a month to month basis, unless otherwise terminated as provided in this Agreement.
(3) Provided that the parties may at any time agree to extend this Agreement for such other period (and on such terms) as the parties may then agree to in writing (failing which the Agreement shall extend on a month to month basis as aforesaid).
(1) The Client acknowledges that pursuant to the Services provided by the Company, customers of the Client will receive mobile advertising, marketing and promotion through the mobile phone used by that customer.
(2) In connection with the foregoing, the Client shall promote the Services to its customers. Customers shall be entitled to receive via their mobile phone the promotional marketing upon texting a "keyword" to a short code as provided by the Company to the Client (a customer of the Client signing up as aforesaid is hereinafter referred to as a "Member").
3. Fees to be paid by Client
In consideration of the Company providing the Services, the Client shall pay the Company according to the services they have signed up for plus HST.
(3) If the Client breaches any term or condition of this Agreement and is so notified by the Company in writing, the Client shall have five (5) days from the receipt of such notice to cure the breach and if the Client fails to do so at the end of the said five (5) day period, then the Company may immediately terminate this Agreement by written notice to the Client. Notwithstanding the termination of this Agreement, any and all monies which may be owing by the Client hereunder to the end of the then term, shall remain due and owing by the Client.
(4) If the Agreement continues on a month to month basis after the Initial Term, either party may terminate the agreement on providing 30 days prior written notice to the other party (unless otherwise agreed to by the parties in any extension agreement)
5. Promotional Material
The Company shall approve any aspect of the marketing promotion carried out by the Client relating to the Services, and the Company reserves the right to refuse/revise same.
(1) The Client shall indemnify and save the Company harmless from any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses that may be incurred by the Company arising out of or related to any breach of this Agreement by the Client.
(2) Further, the Client agrees to indemnify and save the Company harmless from any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses that may be incurred by the Company arising out of or related to any claim which may be brought against the Company by a customer or Member of the Client in any way relating to the subject matter of this Agreement
The Client shall at its own expense obtain insurance coverage in an amount and type sufficient to cover any liabilities it may incur or that may arise out of this Agreement.
8. Limitation on Damages
In no event will the Company be liable to the Client for any special, indirect or consequential damages arising out of or related to this Agreement. The Client shall be solely responsible for and will pay for any and all costs and expenses in promoting the Services to its customers/Members. The Client acknowledges that the Company makes no warranty or representation whatsoever relating to the amount, if any, of increased profits or revenues resulting from the use of the Services. Further, the Client assumes the chance of profit and increased revenue regardless of whether the Client is prevented from benefitting from the Services by factors or circumstances that are unforeseen or beyond the control of the Client or the Company
9. Independent Contractors
Nothing in this Agreement shall be deemed in any way or for any purpose to constitute the parties hereto partners or joint ventures in the conduct of business or otherwise.
The Company shall have the right to assign this Agreement to any person, firm or corporation. The Client shall not assign its rights under this Agreement without the Company's prior written consent, which consent may be unreasonably withheld.
11. Exclusive Rights
The Client acknowledges and agrees that:
(a) during the term of this Agreement, or any extension thereof; and
(b) for a period of six (6) months after the date this Agreement is terminated, for any reason whatsoever,
the Client shall not contract with, engage, or retain any other person or entity providing services that are similar to or competitive with the Services being provided to the Client hereunder. The Client agrees that the Company has a material interest in preserving the relationship and business it has developed with its clients. Accordingly, the Client acknowledges and agrees that the terms of this paragraph are reasonable and constitute a material inducement to the Company to enter into this Agreement.
In the event that any provision or part of this Agreement shall be deemed void or invalid by a court of competent jurisdiction, the remaining provisions or parts shall be and remain in full force and effect.
13. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the employment of the Client and any and all previous agreements, written or oral, express or implied, between the parties or on their behalf, relating to the Client working for the Company, are terminated and cancelled.
14. Modification of Agreement and Waiver
(1) No modification to this Agreement shall be valid or binding unless set forth in writing and duly executed by both parties hereto.
(2) No waiver of any breach of any term of this Agreement shall be effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided in the written waiver, shall be limited to the specific breach waived.
15. Independent Legal Advice
The Client acknowledges that he has been given the opportunity to obtain independent legal advice in connection with this Agreement and has either declined to do so despite being given the opportunity or has so obtained independent legal advice, and further acknowledges that he has read, understands and agrees to be bound by all the terms of contained herein.
16. Headings and Governing Law, etc.
(1) The headings used in this Agreement are for convenience only and are not to be construed in any way as additions to or limitations of the covenants and agreements contained in it.
(2) This Agreement shall be construed in accordance with the laws of the Province of Ontario.
(1) In this Agreement, words importing the singular include the plural and vice versa, and words importing gender include all genders.