TREND HUNTER SERVICES - TERMS AND CONDITIONS (OUTDATED)
August 1, 2017 (Current Version: HERE)The following are the terms and conditions governing the provision of the Trend Hunter Services (“Pro Service”) by Trend Hunter Inc. (“Trend Hunter”) to Company (collectively the “Parties”). Note that this standard agreement and simplified terms are the basis for determining the price charged for the Pro Services. Modification of terms will result in different pricing.
1. DEFINITIONS. For the purposes of these Terms: “Agreement” means the Statement of Work and Services Agreement, these Terms as well as any additional schedules, statement of works, order forms, quotations and all documents supplementing, amending or confirming the Agreement. “Effective Date” means the date the Statement of Work and Services Agreement is executed by Trend Hunter. “Parties” means Trend Hunter and the Company. “Pro Services” means the Pro Service Plan selected by the Company on the Statement of Work and Services Agreement. “Reports” means, as part of the Pro Services, the provision of certain reports to Company, and may include monthly topic reports and the trend reports archive, which shall be delivered in the form and frequency indicated in the Schedule. “Schedule” means the Statement of Work and Services Agreement. “Term” means the initial service term identified on the Statement of Work and Services Agreement (the “Initial Term”) and any extension or renewal term.
2. PRO SERVICE FEES. Pro Service annual fees (the “Fees) are set out in the Schedule and are payable on the execution of the Agreement by the Parties, and annually thereafter on the anniversary date of the Effective Date, unless terminated in accordance with section 8 below. Trend Hunter shall send an invoice to the Company accordingly on an annual basis. Fees are due and payable within thirty (30) days of receipt of invoice.
3. NONEXCLUSIVE LICENSE. Trend Hunter hereby grants Company a limited, revocable, non-exclusive, non-sublicensable license to all material provided by Trend Hunter to Company, including access to the Pro Service and the Reports. Company will not; (i) rent, lease, sell, assign or otherwise transfer rights in or to the Pro Service or the Reports; or (ii) remove any proprietary notices or labels on the Reports. Company will use the Pro Service and Reports solely for Company’s own internal use, and will not make the Pro Service available for timesharing, application service provider or service bureau use or otherwise use the Pro Services except as authorized herein. Trend Hunter reserves all rights not expressly granted to Company. Company may present materials of Trend Hunter in internal presentations to outside companies but shall not distribute any of those materials to third parties
4. CONFIDENTIALITY. "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential", disclosed orally and, within five business days, reduced to writing and marked "confidential" or any information disclosed by one party that pertains to confidential business, brand intentions/directions, marketing, financial or technical information (even if not marked as “confidential”). Confidential Information does not include information (a) already in possession of receiving party without an obligation of confidentiality; (b) hereafter rightfully furnished to receiving party by a third party without a breach of any separate nondisclosure obligation; (c) publicly available without breach of this agreement (e.g.. information in the public domain); (d) furnished by the disclosing party to a third party without restriction on subsequent disclosure; or (e) independently developed by receiving party without reliance on the Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Each party shall use a reasonable degree of care to protect the other party’s Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such, provided, however, either party will not be required to destroy Confidential Information stored in back-up systems except in the ordinary course of its business and such party’s records retention policies.
5. INDEMNIFICATION. Both Trend Hunter and Company shall indemnify, hold harmless and defend the other and its wholly owned subsidiaries and affiliates (including their respective directors, employees, officers, and agents) against any and all third-party claims, and all related liabilities incurred arising out of or relating to (i) a breach of any term or condition of this Agreement, (ii) improper and unauthorized use of the Pro Service by Company or (iii) violations of applicable laws, rules or regulations. The indemnifying party reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification.
6. DISCLAIMER OF WARRANTIES. The information and services included in or available through the Pro Service, including the Reports, may include inaccuracies or typographical errors. Trend Hunter may make improvements and/or changes in the Pro Service or Reports at any time, with or without notice. Trend Hunter does not represent or warrant that the Pro Service will be provided uninterrupted or error-free, or that defects will be corrected. The Pro Service and Reports are provided “as is” and there are no warrantees, claims or representations made by Trend Hunter and/or its subsidiaries and affiliates, either express, implied or statutory with respect to the Pro Service and Reports, including warranties of quality, performance, non-infringement, merchantability, or fitness for a particular purpose. Trend Hunter does not warrant that the Pro Service or Reports will meet the Company’s needs or be free from errors, or that the provision of the PRO Service will be uninterrupted. The foregoing exclusions and disclaimers are an essential part of the agreement and formed the basis for determining the price charged for the Pro Service.
7. LIMITATION OF LIABILITY. Neither party (or its subsidiaries or affiliates) will be liable to the other party for any indirect, special, punitive, consequential (including, without limitation, lost profits or lost data collected through the service), or incidental damages, whether based on a claim or action of contract, warranty, negligence, strict liability, or other tort, breach of any statutory duty, indemnity or contribution, or otherwise, even if the party and/or its subsidiaries and affiliates have been advised of the possibility of such damages. The exclusion contained in this paragraph shall apply regardless of the failure of the exclusive remedy provided in the following paragraph. Trend Hunter's (and its wholly owned subsidiaries') total cumulative liability to Company for any direct loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed the value of the Fees.
8. TERM and NON-BINDING RENEWAL. The Term of this Agreement commences on the Effective Date for the Initial Term period. Provided the Client is not in default hereunder, the Agreement will be automatically renewed for successive one year terms (each, a “Renewal Term”) subject to Company’s right to cancel at least thirty (30) days prior to the end of the current term. These same Terms will remain in effect upon renewal, except that Trend Hunter may be increase the Fees by up to 10% percent annually for any renewal term. Company may terminate this Agreement and the provision of the Pro Service at any time for any reason, however, no refund of Fees will be payable by Trend Hunter. Trend Hunter may cancel service at any time for any reason, refunding proportionate Fees for unused service payable to Company.
9. NON-SOLICITATION OF EMPLOYEES. Company agrees not to directly or indirectly recruit, solicit or otherwise attempt to employ Trend Hunter employees for a period of two (2) years post-employment with Trend Hunter. Trend Hunter agrees not to directly or indirectly recruit, solicit or otherwise attempt to employ Company employees for a period of two (2) years post-employment with Company.
10. MISCELLANEOUS. Each party will be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between the Parties concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the Province of Ontario without reference to its conflict of law principles. Each Party agrees to submit to the exclusive and personal jurisdiction of the courts located in Toronto, Ontario. A waiver of any default is not a waiver of any subsequent default. The relationship between Trend Hunter and Company is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
