BALLER Digital Marketing & Advertising Services Agreement

BETWEEN:

Parkbench Inc. (“Parkbench”) – Canadian HST#: 832772131RT0001

And

(the “CLIENT”) as entered on the online registration form.

 

This Agreement governs the terms of the CLIENT’S utilization of Parkbench’s Digital Marketing & Advertising Services and it is effective upon acceptance by both parties (such date being referred to as the “Effective Date”). Agreement and Acceptance shall be done by clicking the submit button on the online registration form, by the CLIENT agreeing to the terms via email, or by electronic signature of this agreement.

  1. Important Terms of the Service
  1. Exclusivity: Parkbench works exclusively with 1 real estate professional per neighborhood. The CLIENT agrees that Parkbench may provide digital marketing and advertising services to other businesses and professionals in a non-competing category in the CLIENT’s neighborhood. For example, car dealerships, legal and financial services, health and fitness services, and e-commerce.
  2. Full Service: Parkbench will provide a full service to the client. If any design, needs to be done, it is included in the service fees. If any landing pages need to be created, it will be included in the service fees. If any consultation need to happen with the CLIENT, it will be included in the service fees outlined in the registration form. If any work needs to be done on any software that the CLIENT has, or needs to setup, Parkbench will do it and it is all included in the setup and services fees. Custom Content Creation for e-books and email drip campaigns are not included in the service.
  3. Grandfathered Pricing: The CLIENT will get to renew monthly at the same fee structure provided continuous and uninterrupted use and payment for Parkbench marketing and advertising services.
  4. Referral Rewards: CLIENT will receive $250 OFF their next payment, if they refer another business or professional who also becomes a client of Parkbench’s Digital Marketing & Advertising services.
  5. Support: The CLIENT will receive customer service via phone and email.
  6. Reporting: The CLIENT will receive reporting monthly on the performance of their marketing and advertising services
  7. Recurring Payment: Payments will continue to automatically bill the client on a monthly basis until the client has cancelled the service provided by Parkbench. The CLIENT must cancel by giving written notice.
  8. NSF Charges: A charge of $25 will apply for any NSF payments, and a late payment charge of 1.5% per month will be charged on any amounts remaining unpaid for more than 10 days after the regular monthly payment date.
  9. We will cancel your service if you don’t pay: Parkbench may, without liability, suspend or cancel the advertising services provided if the Client fails to pay fees outstanding for more than 15 days, breaches any terms of this Agreement, or uses or allows others to use any Parkbench products and services unlawfully.

 

  1. Terms of Service

 

  1. Provision of Information and Personnel: The CLIENT shall make available to Parkbench such information as is reasonably required for Parkbench to effectively fulfill and perform the Services.
  1. Failure by Customer of Delivery of Information: CLIENT shall deliver all information necessary for Parkbench to perform the Services outlined in the registration form. In the unlikely event that CLIENT cannot deliver the information to Parkbench, then CLIENT shall not hold Parkbench liable for failure of execution of Services.

 

  1. Representations and Warranties 

Each party represents and warrants to the other that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized; all contact and entity information is complete, correct and current, and the execution and delivery of the Terms, and the performance of the transactions contemplated hereby, are within its corporate powers, and have been duly authorized by all necessary corporate action. Client represents and warrants to Parkbench that any information or materials that Client provides in connection with any advertisements (the “Ads”) or marketing materials (the “Advertising Materials”) will (i) be true and complete, (ii) not contain any material which violates Parkbench’s content guidelines or which is otherwise unlawful, defamatory or obscene, or which infringes or violates any third-party rights (including any intellectual property rights or privacy or publicity rights) or which may encourage a criminal offense or otherwise give rise to civil liability and (iii) comply with all applicable laws and regulations in its performance of the Terms (including all applicable privacy / data protection laws and regulations and laws related to promotions). Parkbench reserves the right to reject or remove any Advertising Materials at its sole discretion, with notice to the client, and to alter any Advertising Materials to conform to technical specifications (i.e logo, picture, text).  Client further represents and warrants that it shall not make any claims against Parkbench by reason of any alleged ownership to rights of ownership to profiles of Client, including copyright, moral rights, or rights based on posts on the Parkbench website, which are waived. Client further represents and warrants to Parkbench that Client will not, and will not authorize or induce any other party, to: (i) generate automated, fraudulent or otherwise invalid page views, impressions, inquiries, conversions, clicks or other actions; (ii) use any Parkbench trademarks in any manner without Parkbench’s prior written consent. All rights not expressly granted to Client hereunder are reserved by Parkbench.

  1. Restrictions on Use.

Customer agrees, represents, and warrants to Provider, both during and after the term of this Agreement, the following provisions:

  1. Unless expressly authorized in the Permitted Applications, the Service is for the sole use within Customer’s own organization and by Customer’s own employees or agents. The Service may not be shared with affiliates or any third party, including, without limitation, joint marketing arrangements.
  2. Unless expressly authorized in the Permitted Applications, Customer shall not: (i) disclose, use, disseminate, reproduce or publish any portion of the Service in any manner, (ii) permit any parent, subsidiaries, affiliated entities or other third parties to use the Service or any portion thereof (iii) process any portion of the Service or permit any portion of the Service to be processed with other data or software from any other source, (iv) allow access to the Service through any terminals located outside of Customer’s operations, or (v) use the Service to create derivative products.
  • Customer shall (i) abide by all prevailing federal, provincial, state, and local laws and regulations
  1. of any kind governing fair information practices and consumers’ rights to privacy, including without limitation
  2. any applicable non-solicitation laws and regulations; and (ii) limit access to consumer information to those
  3. individuals who have a “need to know” in connection with Customer’s business and will obligate those individuals to acknowledge consumers’ rights to privacy and adhere to fair information practices and consumer’s right to privacy.
  • Customer shall not use the Service in any way that (i) infringes on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, (ii) violates any law, statute, ordinance or regulation, or (iii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
  1. Termination

 

The Client may terminate this Agreement at any time. The services are month to month. All payments for services are non-refundable. Any monies pre-paid for the CLIENT’s advertisement expenditure (“ad spend”), that are not used, will be refunded. If any payment is not received within fifteen (15) days of the agreed upon date, Parkbench will stop all advertising services, and all monies paid, for services or for ad spend, will not be refunded. Parkbench may restrict, suspend, or terminate the account of any Client who abuses or misuses Parkbench’s staff, services and website. In addition, and without limiting the foregoing, Parkbench has adopted a policy of terminating accounts of Clients who, in Parkbench’s sole discretion, are deemed to be infringers under the Canadian or United States Copyright Act, or that are believed to violate any perceived contract, trademark, or patent rights. Parkbench similarly reserves the right to suspend or terminate the services of any individual or businesses that are believed to be using the service in conjunction with any form of defamatory or libelous conduct, or illegal conduct. Upon the termination of your Parkbench account, you lose access to Parkbench’s services with no refund. The terms of this Agreement shall survive any termination.

 

  1. Parkbench Warranties, Indemnification & Disclaimers

 

Provider hereby represents and warrants that it has (a) qualified personnel, appropriate facilities and adequate resources in order to discharge the Services in a timely and efficient manner, and (b) the necessary experience required to perform the Services in a competent and professional manner. Except as otherwise stated in this section, the service is provided “as is” without warranty of any kind, either express or implied, including without limitation any warranties of merchantability or fitness for a particular purpose. Provider neither assures nor assumes any liability to any person or entity for the proper performance of services. Provider does not represent or warrant that the service is complete or free from error, and does not assume, and expressly disclaims, any liability to any person or entity for loss or damage caused by errors or omissions in the service, whether such errors or omissions result from negligence, accident, or other cause.

 

  1. Parkbench’s Limitation Of Liability

 

Provider shall have no liability under or in any way related to this agreement for any loss, loss of profit or revenue or for any consequential, indirect, incidental, special or exemplary damages, whether in tort, contract, or otherwise, even if provider is aware of the possibility of such loss or damages. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply. The foregoing provisions shall be enforceable to the maximum extent permitted by the applicable Laws. Furthermore, no action, whether in contract or tort (including negligence), or otherwise arising out of or in connection with this Agreement may be brought by the Customer more than six months after the cause of action has occurred.

 

  1. Customer’s Indemnification

 

Customer agrees to indemnify, defend and hold the Provider and its officers, employees, and agents harmless from and against all third party claims, losses, liabilities, costs and expenses (including all legal fees and disbursements incurred in association therewith) arising out of or related to the use of the Service by the Customer, or attributable to Customer’s breach of this Agreement.

 

  1. Proprietary Information 

The Proprietary Information is and shall remain the sole and exclusive property of Provider. Customer shall have only the limited rights with respect to the Proprietary Information expressly granted in this Agreement, and all rights not expressly granted by Provider are reserved. Customer agrees that only Provider shall have the right to alter, maintain, enhance or otherwise modify the Proprietary Information. Customer shall not disassemble, decompile, manipulate or reverse engineer the Proprietary Information and shall take all necessary steps to prevent such disassembly, decompiling, manipulation or reverse engineering of the Proprietary Information. Under no circumstances shall Customer sell, Services, publish, display, copy, distribute, or otherwise make available the Proprietary Information in any form or by any means, except as expressly permitted by this Agreement, including without limitation the transfer to a third party or, if not expressly prohibited by this Agreement, as allowed under the fair use provision of the Copyright Act (Canada) or the Copyright Act, 17 U.S.C. § 107 or similar legislation in other applicable jurisdictions or at common law. Customer will take all reasonable steps, in accordance with the best industry practices, to protect the security of the Proprietary Information and to prevent unauthorized use or disclosure. Customer is responsible for all access to and use of the Proprietary Information by Customer’s employees or agents or by means of Customer’s equipment or Customer’s Provider usernames and passwords, whether or not Customer has knowledge of or authorizes such access or use.

 

  1. Dispute Resolution 

This Agreement or any claim, cause of action or dispute arising out of or related to this Agreement shall be governed by the laws of Canada, regardless of the Client’s state or country of origin.  The parties agree that all claims arising out of or related to this Agreement must be resolved exclusively by a provincial or federal court located in Ontario, Canada, except as otherwise agreed by the parties.  The parties agree to submit to the personal jurisdiction of the courts located within Ontario, Canada for the purpose of litigating such claims.  Notwithstanding the above, the Client agrees that Parkbench shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding arbitration to be held in Toronto, Ontario, Canada through the Canadian Arbitration Association.  Parties shall provide for their own costs related to attending the arbitration.

 

Notices under these Terms must be in writing and sent via email, facsimile, registered or certified mail, or commercial courier to the parties at their respective addresses set forth herein:

 

in the case of the Client:

 

Name as it is recorded on the online registration form.

Business Address: As it is recorded on the online registration form

 

and in the case of Parkbench:

 

Parkbench Inc.

Suite 320 – 171 East Liberty St.

Toronto, ON. M6K 3P6

Attention: Legal

 

 

  1. Miscellaneous 
  2. The Agreement and its exhibits are expressly limited to and made conditional upon Client’s acceptance of its terms and conditions before the Expiration Date. No conditions, printed or otherwise, appearing on other contracts, sales and advertising materials, orders or copy instructions which conflict with, vary, or add to this Agreement will be binding on Parkbench, and any conflicting or additional terms contained in any other documents or oral discussions are void. This Agreement and its entries made on the signup form represent the entire and exclusive agreement between the parties and supersede any and all prior related agreements between the parties, whether emailed, written, or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. No statements or promises by either party have been relied upon in entering into these Terms, except as expressly set forth herein.
  3. The Client shall not assign any of its rights or obligations under the Agreement without Parkbench’s prior consent, and any purported assignment without consent by the Client shall be void.  Parkbench may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to the Client.  Parkbench may also substitute, by way of unilateral novation, effective upon notice to the Client, Parkbench Inc. for any third party that assumes our rights and obligations under this Agreement.
  1. If any provision of the Agreement is held to be invalid or unenforceable by a court of competent jurisdiction or arbitrator, the parties will substitute for the affected provision a valid or enforceable provision that expresses the intent and economic effect of the affected provision, as mutually agreed upon by the parties.  If a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of the Agreement will not be affected in any way.
  1. Neither party will use, or permit their respective employees, agents and subcontractors to use the trademarks, service marks, copyrighted material, logos, names, or any other proprietary designations of the other party, or the other party’s affiliates, whether registered or unregistered, without such other party’s prior written consent.
  2. The Provider may use the Customer’s logo, testimonials and name for use in case studies, social media posts, new client stories, blog posts, success stories and may list the Customer’s logo on the Provider’s website(s) related to the services.
  3. No party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of such party. The time for performance of any act delayed by such causes shall be postponed for a period equal to the delay; provided, however, that the party so affected shall give prompt notice to the other party of such delay. The party so affected, however, shall use its best efforts to avoid or remove such causes of nonperformance and to complete performance of the act delayed, whenever such causes are removed.
  1. Parkbench reserves the right to modify, supplement or replace the terms of the Agreement.  If the Client does not want to agree to the changes to the Agreement, the Client can terminate this Agreement at any time pursuant to Section 4 (Termination). Last updated: Feb 1, 2017.