Time & Space Service Agreement
This Service Agreement between you and Time & Space Media Ltd. (the “Agreement”) governs the use of services by you, and end users. The Estimates set forth which Services and Media are being purchased by you, the costs for such Services and Media, and other relevant details. This Agreement is incorporated by reference into and made a part of any Estimate submitted to Time & Space and
governs the relationship between you and Time & Space.
This Agreement was last updated on May 6, 2019
1.0 ACKNOWLEDGMENTS AND ACCEPTANCE
1.1 – By accepting this agreement, or by executing an estimate that references this agreement you agree to be bound by this agreement. If you are entering into this agreement on behalf of a company or other legal entity, you represent and warrant that you have the power and authority to bind such entity and its affiliates to this agreement, in which case the terms “client”, “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this agreement, you must not accept this agreement. Without limiting the generality of the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, the terms of this agreement. You and each such company shall be jointly and severally liable for fulfillment of obligations under this agreement, including all payment obligations.
2.0 DEFINITIONS
2.1 – In this Agreement the following definitions apply:
2.1.1 – “Deliverables” means those items, if any, to be delivered as part of the Time & Space Services as specified in Statements of Work as executed by the parties from time to time;
2.1.2 – “Intellectual Property” means intellectual property rights as recognized by applicable law including copyright, patents, trade secrets, industrial designs, and trademarks;
2.1.3 – “Media Authorization” means the authorization of Client for Time & Space to engage in certain Media Services, substantially in the form attached at to this Agreement;
2.1.4 – “Media Services” means those services of Time & Space to purchase advertising and marketing media, time, placement, space and/or distribution as may be requested by Client under a Media Authorization;
2.1.5 – “Results” means all results of the Time & Space Services including any Deliverables;
2.1.6 – “Time & Space Services” means those services which may be provided by Time & Space pursuant to this Agreement from time to time, including any Strategy Services as may be described at Schedule A, and as mutually approved under Statements of Work, Estimates, and Media Authorizations as executed by the parties;
2.1.7 – “Statement of Work” means any such statements, substantially in the form attached, describing the Time & Space Services and any Deliverables to be provided by Time & Space to Client.
2.1.8 – “Strategy Services” means those services of Time & Space to provide strategy, advice, planning and execution in respect of advertising, marketing and media for Client’s business.
2.1.9 “Term” means the duration of this Agreement.
Other terms may be defined within this Agreement.
3.0 Time & Space Services
3.1 – Time & Space agrees to provide Client with the Time & Space Services as may be described, pursuant to Statements of Work and/or Media Authorizations as executed by the parties from time to time. Client acknowledges that Time & Space shall have no obligation to commence any Services until Time & Space has received an executed Statements of Work and/or Media Authorization, as applicable. Time & Space is authorized to purchase Media Services, as authorized by Client in a Media Authorization, or Estimate, in the name of Client.
3.2 – For greater certainty, the Client hereunder shall be the party named on this Agreement and shall not be amended to any other person or entity without the prior written consent of Time & Space.
3.3 – Time & Space is authorized to purchase Media Services, as authorized by Client in a Media Authorization, in the name of Client.
3.4 – Time & Space shall provide Time & Space Services in a professional, competent and timely manner, subject to Client meeting its obligations in accordance with this Agreement.
3.5 – Client agrees that Time & Space’s provision of the Time & Space Services is subject to Client’s timely delivery of content, information and materials (collectively “Client Content“) as specified in each Statement of Work and/or Media Authorization.
3.6 – Each party acknowledges that each Statement of Work and/or Media Authorization may be executed by an authorized signatory.
3.7 – Client agrees that Time & Space may subcontract portions of the Time & Space Services, as specified in any Statements of Work and/or Media Authorization. Time & Space shall remain responsible for the execution of the Time & Space Services by any subcontractor.
3.8 – Representatives of each of Time & Space and Client will meet from time to time as mutually agreed, to discuss progress and results under this Agreement, as well as any ongoing plans or changes which may be required, as mutually agreed, to the Time & Space Services or any Deliverables.
4.0 PAYMENT
4.1 – In exchange for the Time & Space Services, Client shall pay Time & Space the fees and expenses in accordance with each Statement of Work and Media Authorization.
4.2 – Time & Space shall have no obligation to execute any Media Services unless Time & Space has received full payment for such Media Services in advance, as specified on the applicable Media Authorization. If Time & Space, at its discretion, chooses to execute any Media Services despite not receiving such payment from Client in advance, Client shall remain liable for full payment thereof.
4.3 – Client acknowledges that Time & Space shall be entitled to charge a commission on Media Services, as set out on each Media Authorization.
4.4 – For any Strategy Services, Time & Space’s fees and expenses shall be paid by Client to Time & Space within 30-days of receipt of invoice from Time & Space except as otherwise specified herein or in the Estimate.
4.5 – Notwithstanding any other provisions of this Agreement, and in respect of any and all Time & Space Services, Time & Space shall be entitled to require payment in advance from Client, or any other security acceptable to Time & Space.
4.6 – Any late payments by Client under this Agreement shall bear interest at 12% per annum, compounded monthly, and which shall be applied for each day that any payment is late.
4.7 – Fees and expenses are subject to applicable taxes in accordance with law including HST and GST, and Client shall pay such taxes on fees and expenses hereunder.
4.8 – Time & Space shall be entitled to forthwith suspend any Time & Space Services under this Agreement, if Client is not current in respect of payments owing to Time & Space. Any resumption of Time & Space Services by Time & Space shall be subject to Time & Space being satisfied as to Client’s ability to pay fees and expenses thereafter, and with any necessary adjustment in the schedule of work to accommodate Client’s delay in payment.
4.9 – Client hereby authorizes Time & Space to proceed with credit checks at Time & Space’s discretion, and for this purpose Time & Space shall be permitted to seek information about Client’s payment and credit history from third parties.
4.10 – The Parties acknowledge that any Media Authorization or Statement of Work may specify payment terms, and to the extent that such payment terms conflict with the main part of this Agreement, the Media Authorization or Statement of Work shall prevail.
5.0 INTELLECTUAL PROPERTY, CLIENT CONTENT
5.1 – Client assumes sole responsibility for Client Content and any intellectual property clearance for Client Content and any Deliverables. Client represents and warrants that: (a) Client owns or controls all necessary rights in the Client Consent to lawfully permit all contemplated uses thereof; (b) Client has paid or will pay any use fees or other amounts due in respect of any use of the Client Content and Deliverables; and (c) the Client Content does not infringe the intellectual property rights, privacy rights, publicity rights, moral rights, or any other legal rights of any third party. Client indemnifies Time & Space for any breach or alleged breach by Client of this section.
5.2 – Client acknowledges that Time & Space is not carrying out intellectual property searches in respect of any Client Content and Deliverables, such as trademark or copyright searches, which Client shall be responsible for arranging or conducting unless specifically agreed otherwise in a Statement of Work.
5.3 – Time & Space retains all rights in its expertise, methods and know-how used in the delivery of the T+S Services under this Agreement and in all Intellectual Property in all Results. Subject to payment to Time & Space as required by this Agreement, Client is hereby exclusively licensed to use and exploit any Intellectual property of Time & Space in the Results of the Time & Space Services under this Agreement.
5.4 – Time & Space shall be entitled to include reasonable samples of Deliverables in Time & Space’s own portfolio and promotional materials and videos, following any public release of same by Client, and subject to any agreement to the contrary in any Statement of Work.
6.0 PRIVACY, PERSONAL INFORMATION
6.1 – Client is solely responsible for seeking and maintaining all required consents for any personal information provided by Client to Time & Space, or which Time & Space is instructed by Client to collect; and without limitation Client warrants that Client is in possession of all required consents to collect, use and disclose any personal information in any promotions, customer follow up, campaigns or materials or other activities pursuant to any Time & Space Services hereunder. Time & Space shall use reasonable security measures to maintain any such personal information in confidence. Client indemnifies Time & Space for any breach or alleged breach by Client of this section.
7.0 CONFIDENTIALITY
7.1 – Each party agrees to take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information (as defined below). Each party agrees to only disclose Confidential Information to its own personnel on a need to know basis related to the activities carried out pursuant to this Agreement. Each party shall be responsible for ensuring that the respective personnel maintain confidentiality in accordance with this Agreement.
7.2 – “Confidential Information” means information held by a party in confidence which is proprietary, commercially valuable or otherwise sensitive and which is provided by one party (“Provider“) to the other (“Recipient“) relating to the Time & Space Services. In order to constitute Confidential Information for the purposes of this Agreement, the Provider must clearly identify such information in writing as being confidential, or if the disclosure takes place orally or in some other non-tangible form, the Provider must summarize it in writing and identify it as being confidential within ten calendar days of the disclosure, and in the case of Client Confidential Information such summary must be provided to the applicable project lead at Time & Space.
7.3 – Information will not be considered Confidential Information for the purposes of this Agreement if such Confidential Information:
7.3.1 – Is required to be disclosed in accordance with law, provided that the party subject to such legal process or requirement endeavours in good faith to notify the other party to this Agreement of the required disclosure and to cooperate, at the expense of the Provider to reasonably minimize any disclosure as permitted by law in the time available;
7.3.2 – is published or becomes available to the general public other than through a breach of this Agreement;
7.3.3 – is obtained by the Recipient from a third party with a valid right to disclose it;
7.3.4 – is independently developed by the Recipient or its personnel without knowledge or use of the relevant Confidential Information; or
7.3.5 – was possessed by the Recipient prior to its receipt from the Provider.
8.0 TERM AND TERMINATION
8.1 – This Agreement will be effective during the Term, subject to rights of termination as set out in this Agreement. Any renewal of this Agreement shall be subject to the mutual written agreement of the parties, at their respective discretion.
8.2 – Either party may terminate this Agreement for convenience and without cause, upon 60 calendar days written notice to the other party. For clarity, in the event of any such termination, Client shall pay all fees and charges relating to the Time & Space Services of Time & Space until the date of termination, plus all expenses incurred by Time & Space which cannot reasonably be terminated by Time & Space as of the date of termination.
8.3 – Either party may terminate this Agreement if the other party commits a material breach of the terms of this Agreement, and such breach is not remedied to the reasonable satisfaction of that party within 15 calendar days after receipt of written notice describing the particulars of the breach.
8.4 – Time & Space’s obligations under all Statements of Work and Media Authorizations shall forthwith end upon any termination of this Agreement, unless the parties agree otherwise in writing.
8.5 – The parties’ obligations, which by their nature would continue beyond the termination or expiry of this Agreement, including but not limited to, obligations regarding intellectual property, confidentiality, and limitations of liability, will survive such termination or expiry.
9.0 USE OF RESULTS AND LIMIT OF LIABILITY
9.1 Time & Space makes no representations or warranties, express or implied, regarding any Results arising from the Time & Space Services. Client also does not represent or warrant that any third-party media provider will provide services as requested under any Media Authorization. Time & Space shall have no liability for indirect, consequential, incidental, or special damages, or loss of revenues or profits. The aggregate liabilities of Time & Space under this Agreement for all claims and causes of action, including breach of contract or negligence, shall be limited to the fees paid by Client to Time & Space in the 12-month period preceding the date at which the first cause of any claims occurred.
10 LAW AND DISPUTES
10.1 – This Agreement shall be governed by the laws of Nova Scotia and the laws of Canada applicable in Nova Scotia.
10.2
10.2.1 – A party claiming that a dispute has arisen from a breach of obligations under this Agreement must provide notice to the other party, within a reasonable period of time of such dispute occurring, specifying the particulars of the dispute, the relief sought, and the basis for the relief.
10.2.2 – Within 15-days of receipt of the notice specified in 2.1, the parties to the dispute must attempt, in good faith, to resolve the dispute.
10.2.3 – If the dispute is not resolved within such 15-day period, or such further period as the parties may mutually agree in writing, then the dispute may be referred by either party to mediation, upon notice to the other party (the “Mediation Notice“).
10.2.4 – All costs associated with any mediation are, unless the parties agree otherwise, to be shared equally between the parties, and each party shall bear the cost of its own legal counsel in respect of any mediation unless otherwise agreed.
10.2.5 – If the parties do not agree on a process for mediation within 15 calendar days of delivery of the Mediation Notice, then either party may, at its option, refer the matter to arbitration in accordance with this section.
10.2.6 – Subject to the completing the steps as set out above in this section (unless section 2.7 applies), all disputes under this Agreement are subject to arbitration before a single arbitrator sitting at Halifax, Nova Scotia, in accordance with the Commercial Arbitration Act (Nova Scotia). One party may provide notice to the other that it wishes to appoint an arbitrator. If the parties fail to consent to the appointment of arbitrator in writing within 15 calendar days of receipt of such notice, then either party shall be free to apply to court for the appointment of an arbitrator in accordance with this Agreement and the Commercial Arbitration Act.
10.2.7 – An arbitrator appointed under the Commercial Arbitration Act shall be entitled to issue interim awards, including injunctions and other equitable remedies, and may do so without the parties having completed the process for mediation set out above in urgent circumstances where irreparable harm may occur if no interim award or order is issued.
10.2.8 – An award, decision or order of an arbitrator is not subject to appeal on questions of law, fact or otherwise.
11.0 GENERAL MATTERS
11.1 – Each party shall fully comply with all applicable laws in carrying out their respective obligations under this Agreement.
11.2 – Where the words ‘include(s)’, or ‘including’ are used in this Agreement, they are deemed to have the words ‘without limitation’ following them unless expressly stated otherwise.
11.3 – Unless otherwise permitted by this Agreement, no waiver of any part of this Agreement shall be binding unless agreed in writing by the waiving party. No waiver of any part of this Agreement shall constitute a waiver of any other part or a continuing waiver unless agreed in writing by the waiving party.
11.4 – Any notice required by this Agreement shall be in writing delivered to the parties at the following addresses or at such amended addresses as provided in accordance with this section. Delivery shall be effective upon delivery by professional courier or by email to the addresses and contacts set out below. Email delivery shall not be effective for any notice of breach, default, suspension or termination under this Agreement.
2570 Agricola St.
Halifax, NS B3K 4C6
11.5 – Neither party may assign this Agreement or any rights and obligations under this Agreement to any third party without the written consent of the other party.
11.6 – The parties are acting as independent contractors under this Agreement and not as agents or representatives of the other and not as partners or joint venturers. Neither party shall enter into any agreement or commitment on behalf of the other without the written consent of the other.
11.7 – If either party is delayed or prevented from exercising its obligations or making deliveries in accordance with this Agreement due to circumstances beyond the reasonable control of that party including strikes, lockouts, labour disputes, fire, explosion, act of God, war, terrorism, or threat of war or terrorism, or other similar causes, then such failure to meet obligations or make deliveries shall not be a breach of this Agreement.
11.8 – Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any provision by a court or tribunal of competent jurisdiction shall not affect the validity or enforceability of any other provision.
11.9 – All paragraph and section headings contained in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.
11.10 – All dollar amounts under this Agreement are in Canadian currency and are exclusive of any GST or HST that may apply.
11.11 – The Schedules, including any executed Statement of Work and Media Authorization, shall form an integral part of this Agreement. Unless expressly stated otherwise herein, in the event of a conflict between the body of this Agreement (i.e. excluding the Schedules) and any of the Schedules to this Agreement, the terms of the body of this Agreement shall prevail.
11.12 – This Agreement constitutes the entire agreement between the parties with respect to its subject matter, and this Agreement replaces all prior understandings, representations, negotiations and communications between the parties, oral and written. Neither party has relied or is relying on any understandings, representations, negotiations and communications in entering into this Agreement, except as expressly incorporated into this Agreement.
11.13 – This Agreement may be executed and delivered in counterpart copies and by facsimile or human readable digital format, and such copies shall be binding on the parties. This Agreement is not binding on any party until executed by all parties.