THE FOLLOWING Terms of Service are applicable to all contracts entered into between you, as the Client
(“Client(s)” or “you”), and Fresh Crowd Inc (“Fresh Crowd(s)” or “we”), as the supplier of certain services. Not all of the Terms of Service set out below are applicable to all contracts, but the relevant portions set out below shall apply to your specific contract(s), depending on the services you have selected (in any case, a “Contract” or the “Contract”). In the event the terms of the Client Packages conflict with the terms of the Contract, the terms of the Contract control:
- Our Service - Fresh Crowd provides an internet-based Social Media Management and brand recognition service which includes several components, notably the posting and maintenance of select Social Media Platforms, and a marketing component meant to increase brand recognition, engagement and/or enhance online communications of the client’s brand.
- Recurring Fee – Client agrees and will pay a recurring monthly fee based on the package they initially purchased as outlined in the above listed as Client Services for a minimum of thirty (30) days. Fresh Crowd reserves the right to prorate billing fee to fall on the first of the month.
- Compliance – Client agrees to not use its Social Media Platform for any purpose that contravenes any law, or is otherwise unlawful or prohibited by these Terms of Service. By purchasing Fresh Crowd’s service you are fully accepting the terms, conditions and disclaimers contained herein. Client shall ensure that its involvement with the Services complies with all laws, rules and regulations applicable to the Client. Client therefore agrees that it will not hold Fresh Crowd liable for any loss or injury resulting from a violation of law.
- Ownership – Client agrees to outsource its Social Media presence to Fresh Crowd for the purpose of maintaining and attempting to grow Client’s social following. Client understands and agrees that at no time is Fresh Crowd the owner of the Social Media Platforms it maintains on behalf of the Client, and is strictly a 3rd party outsourcing service. Client agrees that it is the legal owner of the Social Media accounts it gives Fresh Crowd access to.
- Marketing – Marketing – Fresh Crowd reserves the right to fluctuate the Client’s marketing spend in an effort to garner consistent and/or expected results through the duration of the campaign. Although Fresh Crowd in its best efforts will strive to create the highest engagement as possible, the volume of such is dependent upon market conditions and cannot be guaranteed. Fresh Crowd agrees to allocate a portion of Client’s subscription fee towards advertising their brand through social media. An additional subscription fee will be allocated to marketing management. Additional Advertising spend by the Client can be given to Fresh Crowd over and above its selected Service of which 20% will be deducted for Fresh Crowd’s Management Fee, and the balance of such additional funds shall be fully– allocated towards advertising.
- Errors/Omissions – If Client discovers any error, omission, false or misleading statement, or otherwise objects to or takes issue with any posting, on any of its social media platforms, that has been made on its behalf by Fresh Crowd through the performance of the Services, then Client must notify Fresh Crowd immediately (or forthwith upon discovery) as to the offending posting and advise Fresh Crowd as to the required action to be taken (modification, correction, removal, etc.) in regards to such posting. Fresh Crowd covenants and agrees to take such corrective action forthwith upon being notified of same, provided however that under no circumstances shall Fresh Crowd be liable to Client in any way for any damages arising as a result of any such error, omission, false or misleading statement. Fresh Crowd shall have no liability whatsoever, as stated in paragraph 17 below.
- Cancellation Notice – Client understands that by signing this Agreement they are committing to an agreement with Fresh Crowd paid in equal monthly installments for a minimum of 30 days starting from the date of the first post done by Fresh Crowd. This agreement will automatically renew on a rolling 30-day basis in perpetuity unless this Agreement is terminated. Termination of this agreement may be given by Client with 30 days’ notice of cancellation (one bill cycle). Notice by Client must be electronically delivered to [email protected] at which time acknowledgement of receipt will be given to the client and an exit interview may be scheduled.
- Suspension Clause – If any outstanding payment is not received by the 7th day after the billing date Fresh Crowd will have the right to suspend the service and take alternative action to collect payment.
- Termination – Client acknowledges that it is entering into a partnership contract with Fresh Crowd, of which termination of Fresh Crowds Services need to give 30 days notice. Any Cancellation prior to 30 days notice requires full payment to Fresh Crowd. Fresh Crowd reserves the right to terminate this agreement and any or all of the Services it provides at any time, without notice, for cause, including without limitation, breach of these Terms of Service.
- Pricing Changes – Fresh Crowd agrees to provide you with written or verbal notice of any changes that they wish to make to your services or recurring payment price. The client has the right to opt out of the service provided by Fresh Crowd should they wish to not accept the changes in service or price.
- Client Data – All data entered into the Client’s Social Media platforms either via posting, blogs or advertising remains the property of the Client. Upon cancellation, Client agrees to delete Fresh Crowd as an administrator on its Social Media accounts.
- Agreement Modifications – This Agreement may be modified or amended by authorized representatives of Fresh Crowd Inc. and it is understood that the Client shall abide by and be bound to any modified conditions. Your continued use as a Client of Fresh Crowd constitutes acceptance of such change, therefore it is your responsibility to check the Terms of Service regularly or contact Fresh Crowd for the latest release at [email protected]..
- Representations & Warranties – This Agreement represents the entire Agreement between the parties respecting the subject matter hereof. There are no oral or collateral representations, warranties, covenants, terms, or conditions between the parties that are not set forth herein, and all such oral or collateral representations, warranties, covenants, Terms of Service not set forth herein are specifically disclaimed. Only an authorized representative of Fresh Crowd Inc. may obligate Fresh Crowd to any collateral representations, warranties, terms, or conditions, and only by an instrument or agreement made in writing and signed by such authorized representative.
Client Represents and Warrants to Fresh Crowd that in engaging its Services it shall comply with the following:
(a) Client shall not use the Services for purposes other than lawful purposes;
(b) Client shall not share the Services Agreement and/or any terms of its agreement with Fresh Crowd with any third party
(c) Client shall not knowingly (i) infringe on Fresh Crowd’s or any third party’s copyright, patent, trademark, trade secret or other intellectual property or proprietary rights or rights of publicity or privacy; (ii) violate any law, statute, ordinance or regulation in accordance with Fresh Crowd’s Services provided; or (iii) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing.
(d) Client shall: obtain any necessary licenses, certificates, permits, approvals or other authorizations required by federal, provincial state or local statute, law or regulation applicable to Client’s use of the Services.
- Replication of Service – Client covenants and agrees not to attempt to replicate, duplicate, or reverse engineer the Services Fresh Crowd provides, and agrees to not compete with or attempt to compete with Fresh Crowd by providing services that are the same or substantially similar to the Services provided by Fresh Crowd, including without limitation, any similar Services.
- Indemnification – Client agrees to indemnify and hold Fresh Crowd, its officers, directors, employees and agents harmless from any claims, disputes, demands, liabilities, damages, losses and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your Customer Content, or (iii) your violation of these Terms. Client agrees to hold Fresh Crowd harmless against any legal action in connection with this partnership, in return any deemed breach of contract by Fresh Crowd will allow for Client to terminate the contract prior to the completion of the 30 days notice period.
- Severance – If any of these Terms of Service should be determined to be invalid, illegal or unenforceable for any reason by any court of competent jurisdiction then such Term or Condition shall be severed and the remaining Terms of Service shall survive and remain in full force and effect and continue to be binding and enforceable.
- Governing Law – The Contract and these Terms of Service shall be governed by and construed in accordance with the laws of the Province of Ontario and any applicable federal laws of Canada. In the event of any dispute arising hereunder requiring or involving litigation, Client agrees that the only appropriate forum shall be, and submits to the jurisdiction of, the Courts of the Province of Ontario and all Courts competent to hear appeals therefrom.
- Warranty Disclaimer – THE SERVICES ARE 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, OR WARRANTIES BASED ON COURSE OF DEALING OR USAGE IN TRADE. FRESH CROWD DISCLAIMS ANY AND ALL LIABILITY TO ANY PERSON OR ENTITY FOR THE PROPER PERFORMANCE OF SERVICES. FRESH CROWD DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE COMPLETELY FREE FROM ERROR OR WILL BE AVAILABLE 24 HOURS PER DAY, SEVEN DAYS PER WEEK, 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 SERVICES, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE.
FRESH CROWD MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE LEGALITY OR PROPRIETY OF THE USE OF THE SERVICES IN ANY GEOGRAPHIC AREA.
- Limitation of Liability – Neither Fresh Crowd nor any other party involved in creating, producing, or delivering the services or content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute services arising out of or in connection with these terms or from the use of or inability to use the services of content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Fresh Crowd has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
For the purposes of this Agreement and these Terms of Service, “Personal Information” means all personal information which is processed by Fresh Crowd pursuant to this agreement, including any personal and financial information, “Privacy Legislation” means the Personal Information Protection and Electronic Documents Act (Canada) (“PIPEDA”), any related provincial privacy legislation specific to any Province that has chosen not to adopt PIPEDA, and any other statute, law, or regulation that is applicable to personal information, and “Process” and “Processing” means the collection, use, modification, retrieval, disclosure, storage, deletion, and management of Personal Information.
Fresh Crowd shall comply with all consent and other requirements under all Privacy Legislation in the course of Processing any Personal Information for the purposes of rendering the Services. Without limiting the foregoing, Fresh Crowd shall:
(a) only Process Personal Information in accordance with this agreement or as otherwise instructed in writing from time to time by Client;
(b) not disclose or otherwise transfer Personal Information to any third party without the express prior written consent of Client;
(c) ensure that all Personal Information is accurate and, where legally necessary, kept updated and to use best efforts to ensure that the records of Personal Information which are found to be inaccurate or incomplete are rectified or supplemented, as appropriate;
(d) subject to applicable law, destroy, anonymize or transfer to a successor third-party service provider designated by Client, all Personal Information upon termination of this Agreement or as may reasonably be specified in writing by Client;
(e) promptly respond to (and appropriately document) any enquiry received from Client relating to Client’s right to access, modify or correct Personal Information; and
(f) ensure that it takes all reasonable technical and organizational measures as may be required by any Privacy Legislation, to safeguard the Personal Information against loss, damage, or unauthorized or unlawful Processing.
To the extent that the Services expressly or implicitly require the disclosure of some or all of Client’s Personal Information, Client does hereby expressly authorize Fresh Crowd to make such disclosure and does hereby release Fresh Crowd from any claims arising as a result of such authorized disclosure.
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Last Date of Update: July 18th, 2018