Legal

EMPOWER’S PRIVACY POLICY

Last Updated: January 2021

INTRODUCTION

7960786 Canada Inc., doing business as empower (“Empower” or “We”) provides a software-as-a-service solution that consists of a suite of online marketing and management tools which include i) tools to help store, organize, manage, review, share and reuse any client data (the “Marketing Vault”), (ii) tools to monitor your ongoing marketing campaigns and evaluate results, (iii) tools for engaging with you through its system of notifications to better understand your business, ask questions about your business, send you information about your industry, the marketing world and statistics about how you’re performing and (iv) recommendations to optimize your marketing dollar (collectively, the “Digital Marketing Assistant Services”). Empower can also provide Additional Marketing Services (the Digital marketing assistant services and the Additional marketing services are hereinafter collectively referred to as the “Services”). Empower also provides a website at the following address: https://empower.social/ (the “Website”).

By using the Website and the Services we may have access and may collect certain information relating to an identifiable individual, such as identifiers, professional or employment-related information, financial account information, commercial information, visual information, and internet activity information (“Personal Information”). This privacy policy (the “Privacy Policy”) sets out what Personal Information we may collect from you, the purposes for which we collect it, how we use it and when we may disclose it to third parties. This Privacy Policy also describes the choices you can make about how we collect, use and disclose your Personal Information.

By accessing and browsing our Website or subscribing, using and paying the Services, you hereby consent and agree to the collection, use and disclosure of your Personal Information in accordance with this Privacy Policy.

  1. WHAT INFORMATION WE COLLECT

Using our Services

We collect the following information when you use our Services:

Account information:

  • Your contact and profile information including your name, email address, organization name, and address; your preferences such as language, time zone, and the types of communication you would like to receive from us.
  • Billing and other payment information, including billing name and address, payment method details, such as credit card number or bank account information.
  • The Services you have acquired from us, including the type of plan and transaction information related to the Services.

Content:

  • Depending on your choices, you may send us Personal Information about yourself, your business and/or others such as your email address, name, mailing address, phone number, birthday and gender.
  • Depending on what activity you choose to participate in our Services, you may be asked for additional information, including opinions, evaluations, comments, business information or industry-related information.
  • Information you store in our Marketing Vault may contain Personal Information.

Logs, usage, and support data:

  • Log data, which may include your IP address, the pages you visit within our Services, the date and time when you used the Services, the address of the web page you visited before using the Services, the URL that referred you to our Services, your browser type and settings, your device information (such as make, model, and OS), information about your browser configuration, language preferences, unique identifiers and cookies.
  • Usage data and analytics, which may include the frequency of login, which feature you are using, for how long and when and the different types of activity undertaken by users, and demographic information, such as your gender and age, which we may prompt for you for.
  • General Location information, such as IP address and the region in which you are located when you are logging in and using the Services.
  • Customer support questions, issues, and general feedback that you choose to provide.

Surveys, events, and marketing information

If you choose to participate in our surveys, contests, events, information request, we may collect information about you related to the survey, contest, information request or event; your contact information, such as your name, email address, telephone number, organization name and address; and general information about your organization that you choose to provide, such as annual company revenue, number of employees, your business, your marketing needs and initiatives and your industry.

We may also use service providers to obtain additional business-related information about your business such as the organization’s legal name, size, and publicly available revenue, to assist us in offering services that are appropriate to your organization’s needs.

Using our Website or interacting with us via emails

When you browse our Website or interact with us via emails, we collect information about you as described below, some of which is collected automatically:

  • When you use automated chat functionality (chatbots) to make an inquiry or other request, we may collect information about you such as your name and email address, your specific request, and information related to your use of our Website.
  • Log data, which may include your IP address, the pages you visit within the Website, the date and time when you visited the Website, the address of the web page you visited before using the Website, the URL that referred you to our Services, your browser type and settings, your device information (such as make, model, and OS), information about your browser configuration, language preferences, unique identifiers and cookies.
  • Usage data and analytics, which may include the frequency of login, which feature you are using, for how long and when and the different types of activity undertaken by users, and demographic information, such as your gender and age, which we may prompt for you for.
  • General Location information, such as IP address and the region in which you are located when you are logging in and using the Services.
  • If you express an interest in obtaining additional information about our services; use our “Contact US” or “I’m interested” or similar features; register to receive information from us via our Website; sign up for an event, webinar or contest; or download certain content, we may require that you provide to us your contact information, such as your name, job title, company name, address, phone number, email address.
  • Customer support questions, issues, and general feedback that you choose to provide.

 

Phone calls

  • If you communicate with us via a phone call, we may record that call and required that you provide to us your contact information such as your name, job title, company name, address, phone number, email address.

Visits to our offices

  • If you visit our offices, you may be required to register as a visitor and to provide your name, email address, phone number, company name and time and date of arrival. Additionally, due to the COVID-19 pandemic, you may be required to provide information regarding your health status, including your temperature, COVID-19-related symptoms, exposure to COVID-19 positive individuals, and recent travel history.

If you provide us or our service providers with any Personal Information relating to other individuals, you represent that you have the authority to do so, and where required, have obtained the necessary consent, and acknowledge that it may be used in accordance with this Privacy Policy.

Personal Information we collect from other sources

We also collect information about you from other sources including third parties from whom we purchase Personal Information and from publicly available information.  We may combine this information with Personal Information provided by you. This helps us update, expand, and analyze our records, identify new customers, and create more tailored advertising to provide services that may be of interest to you. The Personal Information we collect from other sources includes identifiers, professional or employment-related information, education information, commercial information, visual information, internet activity information, and inferences about preferences and behaviours. In particular, we collect such Personal Information from the following sources:

  • Third-party providers of business contact information, including mailing addresses, job titles, email addresses, phone numbers, intent data (or user behaviour data), IP addresses, social media profiles, LinkedIn URLs and custom profiles, for purposes of targeted advertising, delivering relevant email content, event promotion and profiling, determining eligibility and verifying contact information; and
  • Another individual at your organization may provide us with your business contact information for the purposes of obtaining services.
  1. COOKIES, WEB BEACONS AND OTHER TRACKING TECHNOLOGIES ON OUR WEBSITE, THROUGH OUR SERVICES AND IN EMAIL COMMUNICATIONS

We use common information-gathering tools, such as tools for collecting usage data, cookies, web beacons and similar technologies to automatically collect information that may contain Personal Information from your computer or mobile device as you navigate our Website, our Services or interact with emails we have sent to you.

By accessing and browsing on our Website and using our Services, you consent to the use of cookies in accordance with the terms of this Privacy Policy. You can control and manage cookies in various ways. Please keep in mind that removing or blocking cookies can negatively impact your user experience and parts of our website may no longer be fully accessible.

Most browsers automatically accept cookies, but you can choose whether or not to accept cookies through your browser controls, often found in your browser’s “Tools” or “Preferences” menu. For more information on how to modify your browser settings or how to block, manage or filter cookies can be found in your browser’s help file or through such sites as www.allaboutcookies.org.

  1. WHY IS YOUR INFORMATION BEING COLLECTED AND HOW IT IS USED

Empower shall collect and use your Personal Information to i) provide the Services to you, including processing your payments, helping you optimize your digital marketing campaigns and recommend personalized digital marketing strategies; (ii) manage your account and communicate with you; (iii) facilitate communications including by collecting information about your device data, your phone number and the content of your text messages; (iv) communicate with you (through your mobile apps, phone, alert, email, post or otherwise) and present you with advertising materials and additional information about our services, products, surveys, contests, promotions and special offers; (vi) help us learn more about your preferences and interactions with our Service; and (vii) conduct statistics, market and performance research to help us evaluate our Service, measure our performance and improve the experiences, services and products we offer.  Empower will not use your Personal Information for purposes other than those indicated herein.

We keep your Personal Information secured, encrypted and confidential and we do not disclose it, but note the following clarifications and exceptions:

  • Law enforcement: We may share your Personal Information to respond to law enforcement requests, court orders or other legal process or if we believe that such disclosure is necessary to investigate, prevent or respond to illegal activities, fraud, physical threats to you or others or as otherwise required by any applicable law or regulation and to the extent necessary to protect property, interests and rights of Empower.
  • Aggregated Statistics and Reports: We freely use and disclose data in an anonymous form, for example, for statistical, analysis, calibration, quality management and improvement purposes in relation to the Services, or for the development or delivery of other products and services by Empower or for the benefit of all its Service users in general.
  • Our employees and authorized independent contractors (“Authorized Personnel”): Authorized Personnel may have access to your Personal Information for the purpose of helping us provide the Services. Authorized personnel access and use such Personal Information in accordance with our instructions, on a “need to know” basis, and under defined strict confidentiality and security obligations.
  • Business transfers: Empower may be involved in the sale of all or substantially all of its business or any other similar transaction. As part of that transaction, we may assign or disclose your Personal Information to the acquiring organization, actual or potential, but will require such organization to agree to protect the privacy of your Personal Information in a manner constituent with this Privacy Policy.
  • Express consent: Empower shall also disclose your Personal Information at your express request.
  1. YOUR PERSONAL INFORMATION AND THIRD PARTIES

The Services or our Website may refer, integrate or link to third-party sites, including the third-party partners of Empower, including Facebook, Google Ads, Google Clouds, IBM Watson, LinkedIn Marketing Partners, Unbounce and any third-party partner referred to at https://empower.social/third-party-applications/  (collectively the “Third-Party Partners”). These third-party sites (“Third-Party Sites”), which links are provided to you for your convenience only and are not under our control. Such Third-Party Sites are governed by their respective privacy policies and terms and may collect your Personal Information. The Third-Party Sites are not developed, sold or designed by Empower. Therefore, Empower does not warrant and is not responsible for the collection, use and disclosure of your Personal Information made by Third-Party Sites. This Privacy Policy does not apply to the practices of third parties and Empower assumes no responsibility for your use of such websites or your access to Third-Party Sites through the Services or the Website.  By using the Services or our Website, or accessing Third-Party Sites through our Services or our Website, you hold Empower harmless for any actions, practices and omissions of these third parties. Please review the privacy policy of each Third-Party Site you visit. We do not rent or sell your Personal Information to third parties.

Furthermore, by subscribing to the Services, you grant Empower the right to share your Personal Information with third-party service providers that we deem acceptable who will use the information to help us respond to your requests and to perform the Services. These third-party service providers will help us optimize your digital marketing campaigns and recommend personalized digital marketing strategies. Please note that we will share only the Personal Information that is required for the use of such third party services solely with the intent of providing the Services to you, We will also make sure that these third-party providers have privacy policies in place. We will furthermore use our best efforts to inform you of such third-party service providers. Such third-party service providers are governed by their respective privacy policies and terms. They are not developed, sold or designed by Empower. Therefore, Empower does not warrant and is not responsible for the collection, use and disclosure of your Personal Information made by these third-party providers. This Privacy Policy does not apply to the practices of these third parties.

  1. MINORS

Our website is designed for use by individuals over 18 years old and over.  Empower does not knowingly collect Personal Information from children under the age of 18. Persons under the age of 18 should not use the Services or Website, not provide Empower with Personal Information. If we learn that we have collected Personal Information from anyone under the age of 18, we will ensure that it is removed from our records as quickly as possible.

  1. PERSONAL INFORMATION PROTECTION

We take appropriate measures to ensure the confidentiality of Personal Information and to protect such information against loss or theft, as well as against unauthorized access, disclosure, copying, use or modification, taking into account, in particular, the sensitivity of the information and the purposes for which it is intended.

Empower uses commercially reasonable and appropriate physical, electronic, and managerial procedures to safeguard and secure the Personal Information we collect. However, since no mechanism offers maximum security, there is always some risk involved when using the Internet to transmit, create or store Personal Information.

In addition, every Empower Authorized Personnel must comply with this Privacy Policy.

CONSERVATION PERIOD

Except for non-identifiable and anonymized information which Empower may store in perpetuity and in any reasonable location, Empower shall host and store your Personal Information for a maximum of one (1) year after you delete your account or ask for the deletion of your account or after you stop paying for the Services. After such a period, Empower will delete your stored Personal Information.

  1. ACCESS AND UPDATE OF PERSONAL INFORMATION

You have the right to access and obtain copies of your Personal Information. You also have the right to update, rectify and correct any Personal Information that you believe is inaccurate or incomplete. To do so, please contact our Privacy Officer at [email protected]

  1. WITHDRAWAL OF CONSENT AND OPT-OUT

If you do not agree with our methods of using your Personal Information as set out in this Privacy Policy, you may withdraw your consent to the use, collection and disclosure of your Personal Information. To do so, please contact Empower’s Privacy Officer at [email protected]. Additionally, we routinely provide “Opt-Out” or “Unsubscribe” instructions on our electronic communications to provide for your removal from future electronic communications.

  1. ELECTRONIC COMMUNICATIONS (E-MAILS)

Your email address may be used to send you electronic communications from time to time. At any time, you may ask us to stop sending you electronic communications by contacting [email protected] or using the “unsubscribe” provided at the bottom of such communication.

  1. AMENDMENTS TO THIS PRIVACY POLICY

We reserve the right to amend or change this Privacy Policy at any time without notice to reflect changes in our practices, technologies, legal requirements and other factors. In the event that material changes are made to this Privacy Policy, we will alert you of such changes through our website and our Services within a reasonable period of time before they become effective. By using the Services or our website, you agree to be bound by the version of the Privacy Policy posted on the date you used any of our Services or website.  In all cases, we encourage you to regularly consult our Services or website to stay informed about any amendments or changes brought to this Privacy Policy.

Any changes or modifications to this privacy policy will take immediate effect upon posting of the amendments or changes or as indicated in any notice of amendment thereto. When we make changes to this Privacy Policy, we will revise the “last updated” date indicated at the beginning of this Privacy Policy.

  1. TERMS AND CONDITIONS OF SERVICES

The Terms and conditions of use of the Services governing your use of the Services, which are available at www.empower.social (and which may be viewed directly in the software) contains important provisions disclaiming and excluding the liability of Empower and others in relation to your use of the Services, and provisions determining the applicable law and exclusive jurisdiction for the resolution of any disputes regarding your use of the Services. Each of those provisions also applies to any disputes that may arise in relation to this Privacy Policy and the collection, use and disclosure of your Personal Information, and are of the same force and effect as if they had been reproduced directly in this Privacy Policy.

  1. DO NOT TRACK

While many current browsers permit you to send a signal to us about your Do Not Track preferences, we do not respond or support Do Not Track signals sent from your browser.

  1. INFORMATION, COMMENTS, CONCERNS AND COMPLAINTS

To get the best use of the Services, please keep your information accurate, current, and complete by routinely updating your account profile.

If you have any questions, comments, concerns or a complaint regarding this Privacy Policy and Empower’s privacy practices, please contact our Privacy Officer, at the following coordinates:

Empower
3-400, Place Ville-Marie
Montréal, (Québec)
H3B 2E3

Email: [email protected]

EMPOWER 

DIGITAL MARKETING ASSISTANT SERVICES TERMS AND CONDITIONS OF USE 

Last Updated : January 2021

7960786 CANADA INC., DOING BUSINESS AS EMPOWER (“Empower”) OFFERS A SOFTWARE-AS-A-SERVICE SOLUTION WHICH CONSISTS OF A SUITE OF ONLINE MARKETING AND MANAGEMENT TOOLS WHICH INCLUDE I) TOOLS TO HELP STORE, ORGANIZE, MANAGE, REVIEW, SHARE AND REUSE ANY CLIENT DATA (THE “MARKETING VAULT”), (II) TOOLS TO MONITOR ONGOING CAMPAIGNS AND EVALUATE RESULTS (THE “CAMPAIGN REPORTS TOOLS”), (III) TOOLS FOR ENGAGING WITH YOU THROUGH ITS SYSTEM OF NOTIFICATIONS TO BETTER UNDERSTAND YOUR BUSINESS, ASK QUESTIONS ABOUT YOUR BUSINESS, SEND YOU INFORMATION ABOUT YOUR INDUSTRY, THE MARKETING WORLD AND STATISTICS ABOUT HOW YOU’RE PERFORMING AND (IV) RECOMMENDATIONS TO OPTIMIZE YOUR MARKETING DOLLAR (THE “RECOMMENDATION TOOLS”) (COLLECTIVELY, THE “DIGITAL MARKETING ASSISTANT SERVICES”). EMPOWER ALSO PROVIDES ADDITIONAL MARKETING SERVICES (AS THIS TERM IS DEFINED IN SECTION 1 HEREOF), WHICH ARE SUBJECT TO THE ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS WHICH ARE AVAILABLE AT WWW.EMPOWER.SOCIAL (THE DIGITAL MARKETING ASSISTANT SERVICES AND THE ADDITIONAL MARKETING SERVICES ARE HEREINAFTER COLLECTIVELY REFERRED TO AS THE “SERVICES”).  

THESE TERMS AND CONDITIONS OF USE (THE “TERMS OF SERVICE” OR THE “AGREEMENT”) ARE A LEGALLY BINDING AGREEMENT BETWEEN EMPOWER, A CANADIAN CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS AT 400-3 PLACE VILLE-MARIE, MONTREAL, QUEBEC, H3B 2E3 (“EMPOWER” OR “WE”) AND THE PERSON OR ORGANIZATION AGREEING TO THESE TERMS (THE “CLIENT” OR “YOU”). IF YOU ARE AGREEING TO THIS AGREEMENT FOR USE OF THE DIGITAL MARKETING ASSISTANT SERVICES OR ADDITIONAL MARKETING SERVICES BY A BUSINESS OR OTHER LEGAL ENTITY OR EMPLOYER, YOU ARE AGREEING ON BEHALF OF THAT BUSINESS OR OTHER LEGAL ENTITY OR EMPLOYER AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH BUSINESS OR OTHER LEGAL ENTITY OR EMPLOYER TO THIS AGREEMENT, IN WHICH CASE THE TERM ”CLIENT” SHALL REFER TO SUCH BUSINESS OR OTHER LEGAL ENTITY OR EMPLOYER.  

THESE TERMS OF SERVICE GOVERN THE CLIENT’S ACCESS TO AND USE OF THE DIGITAL MARKETING ASSISTANT SERVICES. IF YOU WISH TO PURCHASE ADDITIONAL MARKETING SERVICES, THESE WILL BE GOVERNED IN ADDITION TO THESE TERMS OF SERVICE, TO THE ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS. YOU MUST READ, UNDERSTAND AND AGREE TO ALL THE TERMS AND CONDITIONS CONTAINED OR EXPRESSLY REFERENCED IN THESE TERMS OF SERVICES, INCLUDING EMPOWER’S PRIVACY POLICY WWW.EMPOWER.SOCIAL AND ITS ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS WWW.EMPOWER.SOCIAL BEFORE YOU MAY SUBSCRIBE FOR THE DIGITAL MARKETING ASSISTANT SERVICES AND USE THE DIGITAL MARKETING ASSISTANT SERVICES. 

BY CLICKING “I AGREE”, SUBSCRIBING FOR THE DIGITAL MARKETING ASSISTANT SERVICES OR USING THE DIGITAL MARKETING ASSISTANT SERVICES, YOU AGREE TO ALL THE TERMS AND CONDITIONS CONTAINED OR EXPRESSLY REFEREND IN THESE TERMS OF SERVICES, INCLUDING EMPOWER’S PRIVACY POLICY AND ITS ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS.  

IF YOU DO NOT HAVE AUTHORITY TO BIND A BUSINESS OR OTHER LEGAL ENTITY OR EMPLOYER, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS CONTAINED OR EXPRESSLY REFEREND IN THESE TERMS OF SERVICES, INCLUDING EMPOWER’S PRIVACY POLICY AND ITS ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE DIGITAL MARKETING ASSISTANT SERVICES OR ADDITIONAL MARKETING SERVICES. YOU ACKNOWLEDGE THAT THIS AGREEMENT IS AN AGREEMENT BETWEEN YOU AND EMPOWER, EVEN THOUGH IT IS ELECTRONIC AND IS NOT PHYSICALLY SIGNED BY YOU, AND IT GOVERNS YOUR USE OF THE DIGITAL MARKETING ASSISTANT SERVICES. 

EMPOWER MAY CHANGE THESE TERMS OF SERVICE, INCLUDING ITS PRIVACY POLICY AND ITS ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS FROM TIME TO TIME AND THE MOST CURRENT VERSION WILL ALWAYS BE POSTED ON ITS WEBSITEEMPOWER WILL NOTIFY YOU (BY EMAIL TO THE EMAIL ADDRESS ASSOCIATED WITH YOUR CLIENT ACCOUNT) AT LEAST 30 DAYS BEFORE EMPOWER MAKE CHANGES TO THESE TERMS OF SERVICE, INCLUDING ITS PRIVACY POLICY AND ITS ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS AND GIVE YOU AN OPPORTUNITY TO REVIEW THEM BEFORE THEY GO INTO EFFECT UNLESS CHANGES ARE REQUIRED BY LAW. ONCE ANY UPDATED TERMS OF SERVICE, PRIVACY POLICY AND/OR ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS ARE IN EFFECT, YOU WILL BE BOUND BY THEM IF YOU CONTINUE TO USE THE DIGITAL MARKETING ASSISTANT SERVICES.  

PLEASE READ THESE TERMS OF SERVICE CAREFULLY.  

 

1. DEFINITIONS 

1.1 “Additional Marketing Services” means the Additional Marketing Services which may be purchased by the Client upon receipt of any recommendation made by Empower through its Recommendation Tool in the Digital Marketing Assistant Services. Such Additional Marketing Services will be provided by Empower’s team of marketing experts based on the Subscription Plan that you select when subscribing to the Additional Marketing Services, which shall be subject to the Additional Marketing Services Terms and Conditions which are available at www.empower.social, which forms an integral part hereof. 

1.2 “Anonymized and Aggregated Data” shall mean the information generated from the Client Data stored in the Marketing Vault that have been aggregated and anonymized, for statistical, analysis, calibration, quality management and improvement purposes or in order to gather information on the Clients use and behaviours of its Client Data, all of which may be used in an aggregated and anonymized way for the benefit of other Clients in relation to the Digital Marketing Assistant Services. These Anonymized and Aggregated Data must not permit the Client, any of the latter’s Authorized Users, or any individual or legal entity to which the Client Data refers, to be identified, in any manner whatsoever. These Anonymized and Aggregated Data belong to Empower. 

1.3 “Application”  has the meaning given to it in Section 2.1. 

1.4 “Authorized Users” shall mean all persons to whom the Client has given access to the Digital Marketing Assistant Services through its Client account. 

1.5 “Campaign Report Tools” has the meaning given to it in the preamble   

1.6 “Client Account  has the meaning given to it in Section 2.1. 

1.7 “Client Data” shall mean any information of any type, whether confidential or not, in any form, whether stored, entered, registered, input, downloaded, imported, uploaded, used or gathered in the Marketing Vault during the use of the Digital Marketing Assistant Services by the Client or one of its Authorized UsersFor greater clarity, the Client Data includes, without limiting the generality of the preceding, Personal Information, files, contact information, logos, trademarks, images, text, audio or video files, data, client information, product information social media posts, website content, blogs, any marketing data or information and any collateral used by the Client for marketing purposes. 

1.8 “Confidential Information”has the meaning given to it in Section 12.1. 

1.9 “Digital Marketing Assistant Services” has the meaning given to it in the preamble   

1.10 “Disclosing Party”has the meaning given to it in Section 12.1. 

1.11 “Feedback”has the meaning given to it in Section 9.3. 

1.12 “Marketing Vault” has the meaning given to it in the preamble 

1.13 “Monthly Fee” has the meaning given to it in Section 5.1. 

1.14 Personal Information” means all information pertaining to an individual that allows them to be identified or any other information that is subject to Privacy Laws. 

1.15 “Privacy Laws” means any applicable privacy, personal data protection or other similar laws.  

1.16 “Receiving Party”has the meaning given to it in Section 12.1. 

1.17 “Recommendation Tools” has the meaning given to it in the preamble  

1.18 “Security Emergencies” means (i) use of the Digital Marketing Assistant Services that do or could disrupt the Digital Marketing Assistant Services, other customers use of the Digital Marketing Assistant Services, or the infrastructure used to deliver the Digital Marketing Assistant Services; or (ii) unauthorized third-party access to the Digital Marketing Assistant Services. 

1.19 “Services” has the meaning given to it in the preamble  

1.20 “Subscription Plan Fee” has the meaning given to it in Section 5.2. 

1.21 “Third Party Licenses has the meaning given to it in Section 3.8. 

1.22 “Third Party Services and Products has the meaning given to it in Section 3.8. 

1.23 “Third Party Sites has the meaning given to it in Section 3.8. 

1.24 “Website ”  has the meaning given to it in Section 2.1. 

 

2. USE OF SERVICES 

2.1 Registration. To subscribe to the Digital Marketing Assistant Services, you must create a Client account (the “Client Account”) by following the registration procedures and instructions set forth on Empower’s website located at https://www.empower.social/ or another URL we designate (the “Website“) or Empower’s application which can be downloaded through Apple’s App Store or Google Android’s App Store (the “Application”). Each Client Account includes unlimited access and uses by your Authorized Users, to who you may give access to your Client account. 

2.2 Right to Use Services. Subject to the terms and conditions of this Agreement, Empower hereby grants you permission and limited, non-exclusive, non-transferable (subject to Authorized Users right to access and use the Digital Marketing Assistant Services) license to access and use the Digital Marketing Assistant Services, and enable your Authorized Client’s to access and use the Digital Marketing Assistant Services, through your Client account on the Website or the Application solely for your own internal business purposes in accordance with this AgreementYou represent and warrant that: (a) all registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are at least 18 years of age and have the capacity and authority to enter into this Agreement and to bind the Client if the Client is an organization, and (d) your use of the Services does not and will not violate any applicable law or regulation. If you are under 18, you may not register or attempt to register for the Services. 

2.3 Updates. The Digital Marketing Assistant Services include all updates, modifications and enhancements thereto that Empower elects to make generally available to its customers of the Digital Marketing Assistant Services at no additional charge (“Updates”). All Updates shall be subject to the terms of this Agreement.  

2.4 Restrictions. You may not, directly or indirectly, (a) grant licenses, sublicenses, resell, rent, lease, loan, transfer, assign, distribute, market or make available or otherwise commercially exploit or make the Digital Marketing Assistant Services or any portion thereof available to any third party or the public; (b) use the Digital Marketing Assistant Services for any purpose or in any manner that is unlawful (including without limitation in violation of any data, privacy, anti-bribery or export control laws) or is prohibited by this Agreement; (c) read or attempt to read or derive the source code of the Digital Marketing Assistant Services or the software underlying the Digital Marketing Assistant Services (except as permitted by law); (d) work around any technical limitations in the Digital Marketing Assistant Services; (e) illegally access the Digital Marketing Assistant Services, make illegal use of it, or take any action likely to disrupt or alter the proper operation of the Digital Marketing Assistant Services or its components or interfere or attempt to interfere with or disrupt the integrity, security, functionality or performance of the Digital Marketing Assistant Services or its components; (f) use the Digital Marketing Assistant Services in any manner that damages or impairs the Website, the Application or interferes with any other party’s use of the Digital Marketing Assistant Services; (g) modify, translate, adapt, create or attempt to create any derivative works of the Digital Marketing Assistant Services; (h) access the Digital Marketing Assistant Services if you are a competitor of ours or use the Digital Marketing Assistant Services to build a similar or competitive work; (i) hack or otherwise attempt to gain unauthorized access to the Digital Marketing Assistant Services or its related systems or networks; (j) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (k) use the Digital Marketing Assistant Services not for your own benefit but on behalf of a third party; (l) modify, alter, adjust, repair or bypass the Digital Marketing Assistant Services in any manner whatsoever; (m) attempt by any means whatsoever to obtain unauthorized access to the Digital Marketing Assistant Services, source codes, Client account; (n) use the Digital Marketing Assistant Services or provide any Client Data that are in violation of any legislation or the rights of others, or use the Digital Marketing Assistant Services to carry out or promote fraudulent activities or other illegal activities; (o) use, store, share, host, copy, distribute, post, publish, transmit or send Client Date that are or could be considered offensive, hateful, defamatory, discriminatory, obscene, abusive, vulgar, an invasion of privacy, harmful or otherwise nefarious; (p) delete, obscure or modify the legal notices displayed in or in connection with the Digital Marketing Assistant Services and Third-Party Sites and Third-Party Services or Products. You agree to comply with any policy that applies to your use of the Digital Marketing Assistant Services. You will promptly notify Empower if you learn of any unauthorized use or breach of security related to the Digital Marketing Assistant Services. You may not use the Digital Marketing Assistant Services if you are legally prohibited from receiving or using the Digital Marketing Assistant Services under the laws of the country in which you are resident or from which you access or use the Digital Marketing Assistant Services. 

 

3. OBLIGATIONS, RESPONSIBILITIES AND CONSENT OF THE CLIENT 

3.1 Compliance with Agreement. You warrant to use the Digital Marketing Assistant Services in accordance with all the terms, conditions, restrictions and obligations set out in this Agreement. You further agree to make sure that, where applicable, your Authorized Users shall comply with all the applicable provisions of the Agreement. In this respect, you warrant to take all the necessary measures so that your Authorized Users are informed of their obligations under the Agreement.

3.2 Responsibility for Client Account. You are and shall remain at all times solely responsible for your Client account as well as for any activity or transaction carried out by you or by any of your Authorized Users in connection with the Digital Marketing Assistant Services through your Client account. You are and shall also remain at all times solely responsible for maintaining accurate Client account information at all times, including a valid email address and billing information, if applicable, and update such information as necessary. You also acknowledge and accept that you and your Authorized Users must take all reasonable measures required to protect the confidentiality of the information that enables access to your Client account and that you must not disclose it to anyone.

3.3 Responsibility for Access to the Digital Marketing Assistant Services. You are and shall remain at all times solely responsible for obtaining, maintaining and supporting at your own expense all hardware, software and services necessary to access the Digital Marketing Assistant Services, including, but not limited to, internet service providers, telecommunications providers, web browsers.

3.4 Client Data. You warrant, acknowledge and agree that you are solely responsible for the quality, integrity and accuracy of all Client Data that you store in the Marketing Vault or that you provide in relation to the Digital Marketing Assistant Services, as well as all deletions of Client Data carried out by you or your Authorized Users. You acknowledge and agree that you bear sole responsibility for adequate security, protection and backup of the Client Data that you store in the Marketing Vault and in relation to the Digital Marketing Assistant Services and you warrant and represent that your Client Data and your use of your Client Data will not violate any applicable law or any third party right. Empower will have no liability for any unauthorized access or use of any of your Client Data, or any corruption, deletion, destruction or loss thereof. By uploading Client Data to or through the Marketing Vault and Digital Marketing Assistant Services, you grant Empower a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform such Client Data in connection with its provision of the Digital Marketing Assistant Services or the Additional Marketing Services and to share such Anonymized and Aggregated Data to third party providers. You agree that Empower may remove or disable any Client Data that Empower, in good faith, determines violates any applicable law, the terms of this Agreement, or any third party right (including, but not limited to, upon receipt of any claim or allegation by a third party or governmental or regulatory authority relating to such Client Data) and we may disclose such Client Data and other information about your use of the Digital Marketing Assistant Services if legally required to do so provided we will notify you (if not legally prohibited from doing so) in advance of such disclosure of Client Data which is not already public (through no fault of Empower) Services.

3.5 Unauthorized use. You warrant to promptly notify Empower, as soon as you have knowledge of the occurrence or possible occurrence of any unauthorized use of your Client account, as well as any other security incident related to the Digital Marketing Assistant Services.

3.6 Defect, flaw or problem. You warrant to promptly notify Empower, as soon as it has knowledge of any defect, flaw or problem affecting the Digital Marketing Assistant Services.

3.7 LegislationYou warrant to comply with and ensure the compliance of your Authorized Users, of all legislation applicable to the use of the Digital Marketing Assistant Services.

3.8 Third-Party Sites, Services and Products. The Services may refer, integrate or link to third-party sites, products or services. Certain third-party sites (“Third Party Sites”) to which we link are provided to you for your convenience only and are not under our control. We are not responsible for monitoring any transaction between you and any such ThirdParty Sites and do not warrant, endorse, guarantee, or assume responsibility for them. We may also use third-party services and products within the Digital Marketing Assistant Services (“Third Party Services and Products”), including, but not limited to, payment processing services, information and communication services, analytics services, internet advertising platforms, and advertising service providers, which may be subject to or provided in accordance with terms and conditions which may be added to or different from the Terms of Service set forth herein (the “Third Party Licenses”). Client shall be fully responsible for obtaining and complying with Third-Party Licenses and agrees that Empower may not be held liable and makes no representation or warranty in connection with the software, data or other material belonging to third parties, or in connection with Client’s use of such software, data and materials. Empower will not be responsible for any act or omission of such a third-party and Empower does not warrant or support any service provided by the third-party.

3.9 Functionality and confidentiality. The Digital Marketing Assistant Services may include features that would enable, at the discretion of the Client or its Authorized Users, Client Data to be communicated or shared with third parties. In such a case, the Client acknowledges that such third parties may then use, view, copy, distribute, release and modify the Client Data. The Digital Marketing Assistant Services may also include features that limit third-party access to the Client Data during the use of such communication or sharing functions. It is therefore up to the Client, including its Authorized Users, to exercise judgment in the use of these features based on the sensitive nature of the information contained in its Client Data and of its obligations under any applicable law, including any Privacy Law. 

 

4. OBLIGATIONS, RESPONSIBILITIES AND CONSENT OF EMPOWER 

4.1 Access to the Digital Marketing Assistant Services. Subject to compliance by the Client and its Authorized Users of all the terms in this Agreement, Empower warrants to (1) give the Client and its Authorized Users access to the Digital Marketing Assistant Services. Under no circumstances shall Empower be responsible for the computer tools, software, browsers or Internet connections of the Client or the Client’s Authorized Users that enable them to have access to the Digital Marketing Assistant Services. Empower cannot guarantee uninterrupted access or performance, access to the entire network, or no computer errors. 

4.2 Modifications, maintenance and upgrades to the Digital Marketing Assistant Services. Empower reserves the right, at its discretion, without further notice or delay, to modify or revise the functionality or features of the Digital Marketing Assistant Services or to upgrade them. Any modifications, customization or upgrades made to the Digital Marketing Assistant Services by Empower shall then be governed by the terms of the Contract. If any change Empower makes to the Digital Marketing Assistant Services is a material reduction in functionality, you may, as your sole remedy for such change, stop using the Digital Marketing Assistant Services and send a cancellation request email to [email protected]Regular maintenance of the Digital Marketing Assistant Services, including the installation of any modifications, customization or upgrades, shall usually be done outside during the hours to avoid interrupting access to the Digital Marketing Assistant Services. However, if an emergency patch must be installed, this can be done at any time of the day, which may cause the Digital Marketing Assistant Services to be temporarily unavailable.  

4.3 Support services. During the term of this Agreement and subject to the Client’s compliance with all the Licence terms, Empower shall provide the Client and its Authorized Users, included in the Monthly Fee, with technical and functional support services for the Digital Marketing Assistant Services during business hours by telephone and email 

4.4 Authorization to access, collect and use the Client Data. Subject to the commitments made by Empower in the Agreement and the Privacy Policy, in using the Digital Marketing Assistant Services, the Client authorizes Empower, to:  

4.4.1 Access and store its Client Data, including the Personal Information that they may contain, and use them solely to carry out the Digital Marketing Assistant Services, as well as any other obligation under this Agreement. For the purposes hereof, the Client understands and agrees that Empower shall have access to the Client Data namely to use, process, manage, analyze, copy, modify, communicate, share, view, print, export, save, store, host or recover said Client Data, solely for the purposes of this Agreement and the  Digital Marketing Assistant Services and in compliance with it.   

4.4.2 Collect and use Client account information, including the Personal Information that it may contain, for the purpose of allowing Empower to provide access to the Digital Marketing Assistant Services, provide services related to the Digital Marketing Assistant Services, charge for such Digital Marketing Assistant Services, comply with its legal and tax obligations, provide technical and functional support, facilitate communication with the Client or the Authorized Users. However, Empower guarantees the Client that it will only collect, use and communicate the Personal Information that may be contained in the Client Account information for the purposes specified in this article. 

4.4.3 Use Anonymized and Aggregated Data for statistical, analysis, calibration, quality management and improvement purposes in relation to the Digital Marketing Assistant Services, or for the development or delivery of other products and services by Empower or for the benefit of its users. However, Empower guarantees to the Client that the Anonymized and Aggregated Data must not enable the Client, any of the latter’s Authorized Users, or any individual or legal entity to which the Client Data refer, or any Personal Information, to be identified, in any manner whatsoever. You understand and agree that we may monitor your use of the Digital Marketing Assistant Services as well as the use of the Digital Marketing Assistant Services by all of our clients and that we may use the information gathered in an aggregate and anonymous manner. You agree that we may use and publish such aggregated and anonymized information, provided that such information does not identify you. In addition, we may use the information that you submit to the Digital Marketing Assistant Services without identifying you for purposes of improving the Digital Marketing Assistant Services and providing recommendations for you in the framework of the Digital Marketing Assistant Services. 

 
 

5. SUSPENSION OF THE DIGITAL MARKETING ASSISTANT SERVICES 

5.1 With notice. Except for the cases provided under Section 5.2, in the event of a default on the part of the Client or one of its Authorized Users under this Agreement, Empower shall first send the Client a notice of default in writing providing the Client at least thirty (30) days to correct the alleged default. If the Client or Authorized User does not remedy the default in a manner that is satisfactory to Empower within the required time limit, Empower may then, subject to all its other rights and recourses, without any further notice or delay, suspend access to the Digital Marketing Assistant Services and, at its discretion, terminate the Agreement, without further notice. 

5.2 Security Emergencies. Empower may, without prejudice to our rights under this Agreement or applicable law, suspend any or all of the Digital Marketing Assistant Services, effective immediately without notice if (a) we are prohibited by court order or order of another governmental authority from providing access to the Digital Marketing Assistant Services; or (b) we reasonably determine that the Digital Marketing Assistant Services are being used for any abusive, illegal or fraudulent activity that the Digital Marketing Assistant Services are subject to a security incident, denial of service attack, or other events that impact the security of the Digital Marketing Assistant Services.  

 

6. FEES AND PAYMENT 

6.1 Monthly Fee. You will be charged a monthly fee (the “Monthly Fee”) in consideration for the Digital Marketing Assistant Services. You agree to pay the Monthly Fee by credit card. By subscribing to the Services, you grant us and our authorized third-party payment processor(s) the right to store your payment method(s) and to automatically charge your payment method(s) every month until you cancel, in accordance hereto.  We will automatically charge the then-current rate for your Monthly Fee, plus applicable taxes, every month until you cancel. We may change your Monthly Fee rate each monthly renewal term, and we will notify you of any rate change with the option to cancel. If the applicable tax rates (or other included tax or duty) changes during your one-month term, we will accordingly adjust the tax-inclusive price for your Monthly Fee on your next billing date. You will receive an invoice regarding your Monthly Fee payment by email monthly. 

6.2 Subscription Plan FeeIn addition, should you wish to purchase Additional Marketing Services, you will be charged the subscription plan fee you have subscribed for, which will give you a number of credits which will give you access to a number of hours attributable to Additional Marketing Services (the “Subscription Plan Fee”), as such Subscription Plan Fee is more fully described in the Additional Marketing Services Terms and Conditions. 

6.3 Currency. Except where otherwise expressly provided, all amounts in this Agreement are stated and shall be paid in your local currency. 

6.4 Change to payment method. Upon cancellation or expiration of your payment method(s), you agree to immediately provide a new payment method and other information requested by Empower pertaining thereto. You can edit your payment information anytime in your Client Account. 

6.5 Payment failureIf your primary payment method fails, you authorize us to charge any other payment method in your Client Account. If you have not provided us with a backup payment method and you fail to provide payment, or if all payment methods in your Client Account fail, we may suspend your subscription to the Digital Marketing Assistant Services and upon thirty (30) days’ notice, if the payment remains uncured at the expiration of such notice period, the Additional Marketing Services will be suspended also 

6.6 Taxes. All Monthly Fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Digital Marketing Assistant Services, other than taxes based upon our gross revenues or net income.  

6.7 Change in Monthly FeesEmpower reservesthe right to change the Monthly Fees for the Digital Marketing Assistant Services at any time. Empower will notify you (by email to the email address associated with your client account) at least 30 days before Empower makes changes to the Monthly Fees. You may, as your sole remedy for such change, stop using the Digital Marketing Assistant Services and send a cancellation request email to [email protected]. Once the new Monthly Fees are in effect, if we have not received your cancellation request, you will be bound by them if you continue to use the Digital Marketing Assistant Services.  

 

7. TERM; TERMINATION 

7.1 Subscription Term and Renewal. Unless otherwise stated by Empower in writing, this Agreement begins as soon as your initial payment is processed. Your subscription will automatically renew each month without notice until you cancel. You authorize us to store your payment method(s) and to automatically charge your payment method(s) every month until you cancel. We will automatically charge you the then-current rate for the Monthly Fee and Subscription Plan Fee, as applicable, plus applicable taxes (if applicable), every month upon renewal until you cancel.  You may prevent renewal of the subscription by sending us a notice of non-renewal to [email protected] before the last day of your then-current subscription term. 

7.2 Cancellation terms. You can cancel your subscription anytime via your Client Account page or by contacting Empower Customer Support. If you cancel within 15 days of your initial order, you’ll be fully refunded. Should you cancel after 15 days, your payment is non-refundable, and your Digital Marketing Assistant Services will continue until the end of that month’s billing period. Furthermore, if you demonstrate a pattern of repeated registrations for paid Digital Marketing Assistant Services followed by cancellation and request for a refund, we may, in our sole discretion, withhold further registrations and/or refuse a further refund. Cancellation does not entitle you to a refund of any prepaid Monthly Fees or Subscription Plan Fees.  

7.3 Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such notice period, or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement immediately if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering the use of the Digital Marketing Assistant Services after the effective date of termination. If we terminate this Agreement for cause, you will promptly pay all unpaid Monthly Fees due for the then-current month. If Empower terminates this Agreement for cause, any Additional Marketing Services being provided to Client pursuant to a Subscription Plan and pursuant to the Additional Marketing Services Terms and Conditions will terminate as of the same date.  

7.4 Effect of Termination. Upon cancellation or termination of this Agreement, all rights of the Client with respect to the use of the Digital Marketing Assistant Services shall terminate at the end of the month for which it has paid. Client acknowledges and agrees that Empower may erase all Client Data stored in the Marketing Vault and on Empower servers within a reasonable period of time (not less than thirty (30) days) following cancellation or termination of the Agreement, provided that Empower may retain copies of such Client Data to the extent required by law, for archival purposes or as created by automatic computer backup and archived as part of normal computerized archiving systems, maintaining necessary technical and organizational measures. Empower will bear no responsibility for the deletion or loss of such Client Data.   

7.5 Survival. Upon any termination of this Agreement for any reason, all provisions regarding indemnification, warranty, liability and limits thereon, and any provisions which expressly or by their nature are required to survive such termination in order to achieve their purpose, shall so survive until it shall no longer be necessary for them to survive in order to achieve their purpose. 

 

8. PRIVACY 

8.1 Privacy. By using the Digital Marketing Assistant Services, you authorize us to obtain, process, store, use and transmit your personal data in accordance with our Privacy Policy located at: empower.social/legal/ which forms an integral part of this Agreement.

9. OWNERSHIP AND INTELLECTUAL PROPERTY 

9.1 Proprietary Rights. You agree that all rights, title, and interest in and to the Empower Website, Empower Application and Digital Marketing Assistant Servicesthe tools included in the Digital Marketing Assistant Services, the Marketing Vault, the format, structure and presentation, as well as the procedures, processes, techniques, technologies, know-how or business intelligence forming the basis for the generation of the Campaign Marketing Tools, Recommendation Tools, as well as the recommendations made pursuant thereto, the Anonymized and Aggregated Dataand all intellectual property rights in each of the foregoing, including, without limitation, patent, copyright, trademark, database rights, moral rights, rights in know-how and trade secrets (and any licenses in connection with any of them) throughout the world, whether or not registered or capable of registration, and whether subsisting in any specific country or countries or any other part of the world, are and will remain the sole and exclusive property of Empower, its licensors or affiliates. Except for access and use to the Digital Marketing Assistant Services, no other rights are granted to you with respect to the Empower Website, Empower Application and Digital Marketing Assistant Services. Empower reserves all rights not expressly granted in this Agreement. 

9.2 Respect of intellectual property rights. The Client agrees to respect the intellectual property rights of Empower and of any third party when using the Digital Marketing Assistant Services. If any information in the Client Data includes elements designed, in whole or in part, by a third party or belonging, in whole or in part, to a third party, and if the latter has intellectual property rights in said information, the Client warrants to obtain the appropriate rights enabling it namely to use any such element or part thereof. The Client warrants to indemnify and save harmless Digital Marketing Assistant Services if the latter is subject or a party to any legal proceedings brought by a third party and alleging violation or theft, real or perceived, of any intellectual property rights, titles or interests by the Client or its Authorized Users, and to indemnify Digital Marketing Assistant Services against any monetary award in capital and interest, as well as for all judicial and extra-judicial costs which Digital Marketing Assistant Services may incur as a consequence thereof. 

9.3 Client Data. As between Client and Empower, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all Client Data, including all intellectual property rights relating thereto, subject to the rights and permissions granted to Empower pursuant hereto. 

9.4 Empower Marks. Empower and Marketing team in your pocket™ and all other Empower marks (the “Empower Marks”) are the trademarks or service marks of Empower. All other marks and logos are the property of their respective owners. You may not use the Empower Marks, without our prior written permission. You may not use Empower Marks in any manner that disparages Empower or its products or services or portrays Empower in a false, competitively adverse or poor light. Your use of Empower Marks may be subject to usage guidelines made available by Empower from time to time. You agree not to contest the ownership of the Empower Marks or to register or attempt to register any confusingly similar mark in any jurisdiction for any reason. 

9.5 Use of suggestions, ideas and comments. Empower may, at its sole discretion and for any purpose whatsoever, use, modify and incorporate into its products and services any ideas, suggestions, comments or other feedback related to the Website, the Application or the Digital Marketing Assistant Services (“Feedback”) that originate from the Client or Authorized Users comments, recommendations and suggestions, without being obligated toward the Client or its Authorized Users in any way, or without having to recognize their moral rights. You agree that all such Feedback is non-confidential and that we own all rights to use and incorporate such Feedback into the Digital Marketing Assistant Services, or any other product or service, without payment or attribution to you. 

 

10. WARRANTY DISCLAIMER & LIMITATION OF LIABILITY 

10.1 Disclaimer. EXCEPT WHERE PROHIBITED BY LAW, THE DIGITAL MARKETING ASSISTANT SERVICES, THE WEBSITE AND THE APPLICATION ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, AND NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT THE SERVICES OR THE WEBSITE (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; (C) WILL BE APPROPRIATE OR AVAILABLE FOR USE IN ALL LOCATIONS; OR (D) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. WE FURTHER MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING THE ACCURACY OR COMPLETENESS OF THE CONTENT ON ANY SITES TO WHICH THE WEBSITE OR SERVICES ARE LINKED. CLIENT IS RESPONSIBLE FOR USING THE DIGITAL MARKETING SERVICES ASSISTANT WEBSITE IN ACCORDANCE WITH THE TERMS SET FORTH HEREIN AND BACKING UP ANY STORED DATA ON THE DIGITAL MARKETING ASSISTANT SERVICES. 

10.2 Limitation of Liability. With the exception of any indemnification obligations stated herein, in no event will either party and its respective affiliates, officers, directors, employees, or agents be liable for any indirect, incidental, special, punitive, or consequential, exemplary or punitive damages or loss of use, profits, revenue, data or business opportunities arising out of or related to this Agreement, even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose. Our maximum aggregate liability to you for any damages arising from or related to this Agreement is limited to the greater of (a) fifty dollars (CAD $50) or (b) amounts (Monthly Fees) you have paid to us under this Agreement within the prior 12 months. You understand and agree that if you do not agree to this limitation of liability, we would not provide the Digital Marketing Assistant Services to you. The foregoing limitation of liability shall apply to the fullest extent permitted by law. 

10.3 Warranty Disclaimer with Regard to ThirdParty Sites, ThirdParty Services and Products. Empower disclaims any liability with respect to any ThirdParty Sites and any ThirdParty Services and Products that you use. 

 

11. INDEMNITY 

11.1 You agree to defend, indemnify and hold harmless Empower and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) arising from (a) your breach or other violation of this Agreement, (b) your Client Data, (c) your use of and access to the Digital Marketing Assistant Services and the Website and Application, or (d) your violation of applicable law or any third party right, including without limitation any privacy, intellectual property or other proprietary rights. This defence and indemnification obligation will survive the termination of this Agreement and your use of the Digital Marketing Assistant Services and the Website and Application. Empower reserves the right to assume the exclusive defence and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting Empower’s defence of such matter. 

 

12. CONFIDENTIALITY 

12.1 Confidentiality. All confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated in writing as confidential (“Confidential Information”) will be safeguarded by the Receiving Party to the same extent that the Receiving Party safeguards its own information of like kind, but using not less than a reasonable degree of care. The Receiving Party shall not use Confidential Information for any purpose outside the scope of this Agreement or disclose Confidential Information to any third party (except as explicitly stated in our Privacy Policy). The Receiving Party’s obligations under this section shall not apply to information which is publicly available through no fault of the Receiving Party, already in Receiving Party’s possession without obligation of confidentiality, rightfully obtained by Receiving Party from third parties, not under the obligation of confidentiality, or independently developed by Receiving Party as evidenced by written documentation. If the Receiving Party is requested pursuant to a court or government order to disclose Confidential Information, the Receiving Party will give the Disclosing Party written notice (if not legally prohibited from doing so) sufficient to enable the Disclosing Party to seek a protective order and the Receiving Party will cooperate with the Disclosing Party in such effort. 

12.2 Notification Obligation.  If the Receiving Party becomes aware of any unauthorized use or disclosure of the Confidential Information, the Receiving Party shall promptly notify the Disclosing Party of all facts known to it concerning such unauthorized use or disclosure and take all reasonable steps to mitigate any potential harm or further disclosure, loss or destruction of such Confidential Information.  If the Receiving Party or any of its Representatives becomes legally compelled by applicable law, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar judicial or administrative process to disclose any of the Confidential Information, the Receiving Party shall, unless prohibited by applicable law, provide the Disclosing Party with prompt written notice of such requirement, and shall exercise commercially reasonable efforts to cooperate with the Disclosing Party (at the Disclosing Party’s expense) in any reasonable efforts by the Disclosing Party to obtain a protective order or similar remedy with respect to such Confidential Information.  In the event that such protective order or other similar remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that has been legally compelled, and shall cooperate with the Disclosing Party (at the Disclosing Party’s expense) in any reasonable efforts by the Disclosing Party to obtain assurance that confidential treatment will be accorded such disclosed Confidential Information. 

 

13. GENERAL PROVISIONS 

13.1 Notices. Notices to you shall be given to the email address on file associated with your Client Account. You agree to receive communications from us in an electronic form. All notices to you will be deemed received when sent. We may, but are not obligated to, provide communications in paper format. Notices to us shall be given to [email protected]. 

13.2 Assignment. You may not assign or transfer this Agreement, or rights or obligations under it, without our prior written consent provided however that you may assign this Agreement to an affiliate or pursuant to a merger, consolidation, reorganization or sale of all or substantially all of the assets of the business to which this Agreement relatesYou must inform us as soon as possible by sending a notice to us at [email protected]We may assign this Agreement, in whole or in part, without restriction. Any assignment or transfer in violation of the foregoing shall be deemed void and of no effect. Subject to the foregoing, the provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. 

13.3 Governing Law and JurisdictionThis Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Montreal, Quebec, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 

13.4 Extended Meaning. Except as otherwise provided herein, the parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. 

13.5 Force MajeureNeither party shall be liable for failure or delay of performance of its obligations resulting from any condition beyond its reasonable control (except for any payment obligation), including but not limited to, (a) acts of God; (b) flood, fire, earthquake, tsunami or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns or other industrial disturbances; (i) shortage of adequate power; (j) pandemics or epidemics. 

13.6 Severability. If any provision of this Agreement is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, this shall not impair the operation of this Agreement or affect the other provisions which are valid. 

13.7 No Waiver. No failure or delay by Empower to exercise any right or remedy will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion. 

13.8 Entire Agreement. This Agreement is the entire agreement between you and Empower concerning your use of the Digital Marketing Assistant Services and supersedes all other proposals and agreements, whether in oral, written or electronic form. In the event of any conflict between the terms of this Agreement or any other document, the terms of this Agreement shall prevail. No terms in any purchase order or in any order documentation are incorporated into or form any part of this Agreement, unless otherwise mutually agreed between you and us in writing.  

13.9 Languages. You agree that this Agreement is written in the English language and that the English language version of this Agreement and any related document (including notices) shall prevail.  

13.10 Relationship of the Parties. This Agreement does not create or imply any agency, partnership or franchise relationship. Nothing in this Agreement, express or implied, is intended to or shall confer on any third party any right, benefit or remedy of any nature whatsoever. 

 

EMPOWER  

ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS  

Last Updated : January 2021

7960786 CANADA INC., DOING BUSINESS AS EMPOWER (“Empower”) OFFERS A DIGITAL MARKETING ASSISTANT SOFTWARE-AS-A-SERVICE SOLUTION WHICH CONSISTS OF A SUITE OF ONLINE MARKETING AND MANAGEMENT TOOLS WHICH PROVIDE NOTABLY RECOMMENDATIONS TO OPTIMIZE YOUR MARKETING DOLLAR.  

UPON RECEIPT OF ANY SUCH RECOMMENDATIONS MADE BY THE DIGITAL MARKETING ASSISTANT SERVICES, YOU MAY PURCHASE ADDITIONAL MARKETING SERVICES WHICH WILL BE PROVIDED BY EMPOWER’S TEAM OF MARKETING EXPERTS. SUCH SERVICES WILL BE SUBJECT TO THE SUBSCRIPTION PLAN THAT YOU SELECT WHEN PURCHASING THE ADDITIONAL MARKETING SERVICES. 

THESE ADDITIONAL MARKETING SERVICES TERMS AND CONDITIONS GOVERNS THE PROVISION BY EMPOWER OF THE ADDITIONAL MARKETING SERVICES (THE TERMS AND CONDITIONS”). 

THESE TERMS AND CONDITIONS, TOGETHER WITH ANY STATEMENT OF WORK (COLLECTIVELY, THE “MARKETING SERVICES AGREEMENT”) ARE A LEGALLY BINDING AGREEMENT BETWEEN EMPOWER, A CANADIAN CORPORATION WITH ITS PRINCIPAL PLACE OF BUSINESS AT 400-3 PLACE VILLE-MARIE, MONTREAL, QUEBEC, H3B 2E3 AND THE PERSON OR ORGANIZATION AGREEING TO ANY SUCH STATEMENT OF WORK (THE “CLIENT” OR “YOU”).  

BY SIGNING ANY STATEMENT OF WORK WITH EMPOWER THROUGH YOUR SUBSCRIPTION WITH THE DIGITAL MARKETING ASSISTANT SERVICESYOU ACKNOWLEDGE HAVING READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS OF THIS MARKETING SERVICES AGREEMENT AND FURTHER AGREE THAT EVEN THOUGH THIS MARKETING SERVICES AGREEMENT IS IN ELECTRONIC FORM AND IS NOT PHYSICALLY SIGNED BY YOU, IT GOVERNS THE ADDITIONAL MARKETING SERVICES TO BE PROVIDED TO YOU BY EMPOWER. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS CONTAINED OR EXPRESSLY REFERENCED IN THIS MARKETING SERVICES AGREEMENT, YOU MUST NOT ACCEPT THIS MARKETING SERVICES AGREEMENT AND EMPOWER MAY NOT PROVIDE THE ADDITIONAL MARKETING SERVICES. THE CLIENT AND EMPOWER MAY EACH BE REFERRED TO INDIVIDUALLY HEREIN AS A “PARTY”, AND COLLECTIVELY AS THE “PARTIES”.  

PLEASE READ THIS MARKETING SERVICES AGREEMENT CAREFULLY.  

 

1. Definitions

1.2 “Confidential Information” shall have the definition set forth in Section 10.1 below.

1.3 “Effective Date” means the effective date of any SOW.

1.4 “Empower Materials” means Empower proprietary materials or technology developed or prepared by Empower, its employees, agents, and contractors and in existence prior to the Effective Date, and identified in a Statement of Work, but only to the extent incorporated into the Deliverables or otherwise provided to Client in connection with this Agreement.

1.5 “Digital Marketing Assistant Services means the Digital Marketing Assistant Software-as-a-Service Solution provided by Empower at https://www.empower.social/ or another URL Empower designates (the “Website“) or the Empower application which can be downloaded through Apple’s App Store or Google Android’s App Store (the “Application”).

1.6 “Deliverables” means all Services, work and materials to be delivered by Empower to Client under this Marketing Services Agreement and any SOW, including all content, technology, materials, creative, artwork, trademarks, information, reports, data, analyses, goods, documentation, Work Product, and materials that are actually delivered to Client under this Marketing Services Agreement. 

1.7 “Intellectual Property Rights” means any right, title or interest, throughout the world, to any patent, patent application, copyright, copyright application, moral right, trademark, trade secrets, know-how, invention, algorithm, and any similar or equivalent intellectual property.

1.8 “Client Materials” means all information, materials, technology, specifications, Client trademarks, and any computer software provided to Empower by Client or otherwise used by Client in connection with the Services, including modifications, changes and derivatives thereto, whether or not created as part of the Services.  Client Materials shall include any information of any type, in any form, whether generated, entered, registered, input, downloaded, imported, uploaded, used or gathered in the marketing vault and during the use of the Digital Marketing Assistant Services by the Client or one of its authorized users.

1.9 “Services” means the additional marketing services to be provided by Empower for Client under this Marketing Services Agreement, and as described in any SOW.

1.10 “Statement of Work” or “SOW” means a mutually executed written description of the Services that sets forth the specific terms and conditions under which Empower shall perform Services and/or provide Deliverables to Client or an email specifying in summary form the Services to be provided for the Client.  Each SOW should contain at least the following information: (i) reference to this Marketing Services Agreement, (ii) a description of the Services and Deliverables; (iii) an estimate of the fees necessary to perform the Services and/or Deliverables and the number of credits to by applied thereto under the Client’s Subscription Plan; and (iv) the date that the Services will start and are scheduled to end; (v) each Party’s specific responsibilities and obligations with respect thereto; (vi) delivery and/or performance schedules; and (vii) any other information the Parties deem necessary or appropriate to be included in the SOW. The terms and conditions of this Marketing Services Agreement shall be applicable to all Deliverables.  In the event of a conflict between any SOW and this Marketing Services Agreement, the terms and conditions set forth in this Marketing Services Agreement shall govern unless the Parties specifically and expressly state otherwise in such SOW.

1.11 “Subscription Plan” means any subscription plan the Client may purchase through the Digital Marketing Assistant Services, the pricing of which is more fully described at https://empower.social/pricing/ or as it may be negotiated between the Parties, which will give the Client a number of credits which may be exchanged for a number of hours representing a reduced rate for the purchase of Services pursuant hereto, as more fully detailed in the chart available at https://empower.social/pricing/.

1.12 “Third Party Materials” means any portion or element of the Deliverables that is/are owned by and licensed from a third party or that are otherwise subject to usage restrictions, including, without limitation, any talent rights (including, without limitation, names, likenesses, images, pictures, signatures, voice, personality, performances, biographical information and rights of publicity of any talent), video, photography, footage, music, artwork, designs, software and other content.

1.13 “Third Party Licenses” means the licenses and agreements with third parties governing the use of Third Party Materials.
 
1.14 “Work Product” means (i) the Deliverables; and (ii) any inventions (whether or not patentable), works of authorship, technology, software, know-how, designs, trademarks, artwork, ideas, formulae, manufacturing techniques, processes, developments, improvements, trade secrets, or any other patentable or copyrightable works which were or are conceived, developed, reduced to practice, made or created (or caused to be conceived, developed, reduced to practice, made or created) by Empower, solely or jointly with others, as part of or in connection with the Services. Work Product does not include Empower Materials, even if incorporated into a Deliverable. 

 

2. SERVICES

2.1 Governing Terms. Subject to the terms of this Agreement, Empower shall provide Client with the Services as specified in each SOW.  All work is done and Services performed by Empower during the Term shall be governed by this Marketing Services Agreement, unless and to the extent that the Parties expressly agree otherwise in writing. 

2.2 Performance Standards. Empower shall perform the Services, its responsibilities and obligations hereunder (i) in a timely and professional manner consistent with industry standards; (ii) in compliance with all applicable laws; (iii) within any time, schedule, completion requirements and other requirements specified in the applicable SOW; and (iv) with a level of skill and expertise in the industry consistent with the requirements of the scope of Services. 

2.3 Approval of Subcontractors. Empower may subcontract all or a portion of the Services to a third party, provided that any subcontract will be subject to the terms of this Marketing Services Agreement and the applicable SOW and that any cost associated with the third party may not exceed the estimated and approved amounts in an SOW. 

2.4 Change Orders.  During the Term, Empower and Client may agree on additions, modifications, suspension, or termination of certain Services or Deliverables under a given SOW.  Any such modifications and fees associated with the modifications shall be set forth in an addendum or amendment to such Statement of Work signed by both Parties (“Change Order”).  Any additional Services, Deliverables or modifications set forth in a SOW or Change Order shall be deemed to be Services and/or Deliverables for the purposes of this Marketing Services Agreement. 

 

3 Fees and Payment 

3.1 Conditions for Services. As a condition to entering any SOW and providing any Services, the Client must have subscribed to the Digital Marketing Assistant Services, have a client account pursuant thereto, have paid the monthly fees relating to the access and use of the Digital Marketing Assistant Services and must have purchased a number of credits pursuant to a Subscription Plan.  

3.2 Payment of fees through the Subscription Plan. Any fees payable under any SOW will be payable by a number of credits to be taken from the Client’s Subscription Plan in accordance with the detailed chart provided at https://empower.social/pricing/. 

3.3 Payment Terms. The Subscription Plan fees will be payable by credit card, according to the payment method and other information provided in your client account for the Digital Marketing Assistant Services.

3.4 Change to payment method. Upon cancellation or expiration of your payment method(s), you agree to immediately provide a new payment method and other information requested by Empower pertaining thereto. You can edit your payment information anytime in your Client Account.
 
3.5 Payment failure. If your primary payment method fails, the Client authorizes Empower to charge any other payment method in your Client Account. If you have not provided us with a backup payment method and you fail to provide payment, or if all payment methods in your Client Account fail, we may suspend your subscription to the Digital Marketing Assistant Services and/or Additional Marketing Services. 

3.6 Update of Subscription Plan. If upon signature of any SOW, the fees payable under any such SOW are in excess of the number of credits which remain on Client’s Subscription Plan, the Client undertakes to immediately purchase a Subscription Plan enabling it to have a sufficient number of credits to exchange any such SOW.

3.7 Reimbursement of credits. Once purchased, credits may never be exchanged or reimbursed for money.

3.8 Taxes. The applicable taxes will be payable upon payment of the applicable Subscription Plan

3.9 Credit Memos.  If from time to time Empower issues any credit memo to the Client pursuant to this Agreement, then Empower shall add credits to the Client’s Subscription Plan. 

4. WORKING RELATIONSHIP

4.1 Independent Contractors. Client and Empower are independent contractors. Except as expressly provided in Section 5 (Ownership) and Section 4.2 (Empower Orders), neither Party is the legal representative, agent, joint venturer, partner, employee or employer of the other Party for any purpose whatsoever, and neither Party has any right, power or authority to assume or create any obligation of any kind or to make any representation or warranty on behalf of the other Party, whether express or implied, or to bind the other Party in any respect.  Empower is solely responsible for any and all liabilities of its employees for their performance under this Marketing Services Agreement and further is responsible for any and all taxes imposed upon Empower, including unemployment taxes, worker’s compensation coverage and other liabilities incurred as the employer providing products, services and/or deliverables pursuant to this Marketing Services Agreement.   Empower acknowledges and agrees that its employees are employees of Empower and further acknowledges and agrees that its employees are not eligible for any benefits under any benefit plan of Client.

4.2 Empower Orders; Commitments to Third Parties.  Notwithstanding anything to the contrary in this Marketing Services AgreementClient hereby authorizes Empowerto purchase materials, services or media on Client’s behalf. 

 
 

5. OWNERSHIP

5.1 Work Product. The Parties agree that Client shall, upon payment of all sums due to Empower in respect thereof, own all Intellectual Property Rights, in and to the Work Product and to any modifications, enhancements or derivative works which Client may make to any of the Work Product. Upon payment of all sums due to Empower in respect thereof, Empower shall be deemed to have assigned to Client, without further formality, all right, title, and interest, and all Intellectual Property Rights, in and to the Work Product. Empower agrees not to challenge the validity of Client’s ownership in the Work Product and hereby waives any and all claims and rights of any nature whatsoever (including moral rights) that Empower may now or hereafter have with respect to the Work Product. In the event that Empower has any Intellectual Property rights in the Work Product that cannot be assigned or waived, then Empower shall, upon payment of all sums due to Empower in respect thereof, be deemed to have unconditionally and irrevocably granted to Client an exclusive, worldwide, fully-paid, royalty-free, perpetual license to use, reproduce, distribute, publicly perform, publicly display, modify, maintain, support and create derivative works of such Work Product in any medium or format, whether now known or later developed. Empower shall not use the Work Product for any purpose other than the performance of Empower’s obligations under this Marketing Services Agreement.
 
5.2 Disclosure; Further Assurances. Empower shall, upon payment of all sums due to Empower in respect thereof, execute and deliver to Client any documents that Client deems necessary or desirable for assigning to Client, all of Empower’s right, title and interest in and to all Work Product. Empower hereby agrees to execute and deliver to Client such further documents and instruments, including without limitation an assignment of copyright in the form provided by Client to Empower, and to take such further actions as Client deems necessary or desirable, in order to effect further the assignment of the Work Product and/or the other provisions of this Marketing Services Agreement, promptly after any request therefor by Client.

5.3 Artist’s Rights; Moral Rights.  If Empower has any rights, including without limitation “artist’s rights” or “moral rights,” in the Work Product or names, taglines and/or designs that cannot be assigned, Empower agrees to unconditionally and irrevocably waive enforcement worldwide of such rights against Client and all claims and causes of action of any kind against Client with respect to such rights, and agrees, at Client’s expense and request, to consent to and join in any action to enforce such rights. In the event that Empower has any such rights that cannot be assigned or waived, Empower shall, upon payment of all sums due to Empower in respect thereof, be deemed to have unconditionally and irrevocably granted to Client an exclusive, worldwide, irrevocable, fully paid and royalty-free perpetual license to use, reproduce, distribute, create derivative works of, publicly perform and publicly display the Work Product and names, taglines, and/or designs in any medium or format, whether now known or later developed in accordance with the terms of this Marketing Services Agreement and/or the applicable SOW.

5.4 Third Party Materials.  Client acknowledges that Third Party Materials may be incorporated within the Deliverables and Work Product with Client’s advance written approval.  Empower will promptly inform Client of all instances where less than exclusive ownership rights can be obtained by Client and, upon request by ClientEmpower will make available to Client all Third-Party Licenses governing the use of Third Party Materials.  Unless and until Empower obtains Client’s prior written consent, Empower will not incorporate any Third Party Materials into Deliverables or Work Product where the Third Party Licenses do not provide, at a minimum, the following terms in favour of Client: a non-exclusive, worldwide, irrevocable, fully-paid, royalty-free, perpetual license to use, reproduce, distribute, publicly perform, and publicly display the Third Party Materials.
 
5.5 Empower’s Materials. Empower will at all times remain the exclusive owner of all right, title and interest, including Intellectual Property Rights, in and to all Empower’s Materials.  Empower shall not incorporate any Empower Materials in the Work Product or Deliverables without specifically identifying such Empower Materials to Client in writing, including in the applicable SOW, and receiving Client’s written consent. For any Empower Materials incorporated into the Deliverables under a SOW, Empower hereby unconditionally and irrevocably grants to Client, and Client hereby accepts, a non-exclusive, worldwide, irrevocable, fully-paid, royalty-free, perpetual license to use, reproduce, distribute, publicly perform and publicly display the Empower Materials in connection with the exploitation of the Deliverables and/or the Services. Except for the license granted in this Section, Empower shall retain all Intellectual Property Rights in and to the Empower Materials.

5.6 Client Materials. All Client Materials are and shall remain the property of Client or its licensors, which shall retain all Intellectual Property Rights therein. Empower obtains no right, title or interest therein, except that during the Term Empower may use the Client Materials for the sole, exclusive and limited purpose of performing the Services or creating the Deliverables set forth in the applicable SOW and in compliance with the terms and conditions of this Marketing Services AgreementEmpower shall comply with the terms of any license or any other agreement applicable to such Client Materials. Empower shall not encumber the Client Materials in any way, and shall promptly return to Client any and all Client Materials in Empower’s possession or control upon Client’s request and, in any event, upon termination or expiration of the terms and conditions relating to the use of the Digital Marketing Assistant Services. Except as set forth herein, no express or implied licenses to any Client Materials are granted by Client to Empower under this Marketing Services Agreement.

5.7 Assignment by Personnel. No employee, consultant, or contractor of Empower shall participate in providing Services or any development work under this Marketing Services Agreement unless such employee, consultant or contractor has first entered into an appropriate written agreement with Empower that covers the assignment to Empower of all Intellectual Property Rights in and to such Services and development work. 

5.8 Trademark License and Restrictions.  Subject to the terms and conditions hereof, Client hereby grants to Empower a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to use any of the Client trademarks solely as necessary to perform the Services.  Empower shall not use the Client’s trademarks for any other purpose without the prior written consent of Client (which consent may be withheld in the Client’s sole discretion).    Title to and ownership of the Client’s trademarks shall remain with Client.  Empower shall not take any action inconsistent with the Client’s ownership of the Client’s trademarks.  Any benefits accruing from the use of the Client’s trademarks shall automatically vest in Client.  Empower shall not form any combination marks with the Client’s trademarks.  The license granted to Empower in this Section is not sublicensable, transferable, or assignable.   

 

6. REPRESENTATIONS AND WARRANTIES

6.1 By Client. Client represents and warrants to Empower that (iClient is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; (ii) this Marketing Services Agreement has been duly authorized by all necessary corporate action; and (iii) this Marketing Services Agreement is the legal, valid, and binding obligation of Client, enforceable against Client in accordance with its terms.

6.2 By Empower.  Empower represents and warrants to Client that:

6.2.1 Empower is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization; that this Marketing Services Agreement has been duly authorized by all necessary corporate (or other entity) action; and that this Marketing Services Agreement is the legal, valid, and binding obligation of Empower, enforceable against Empower in accordance with its terms. 

6.2.2 Empower has obtained any and all consents, permits, licenses and authorizations necessary for or in connection with providing the Services to ClientEmpower’s entry into or performance of this Marketing Services Agreement does not and shall not violate any other agreement by which Empower is bound, and Empower has full power, authority, unrestricted ability and all rights necessary: (i) to enter into this Marketing Services Agreement and to perform all of Empower‘s obligations hereunder; (ii) to provide the Services; (iii) to provide the Deliverables and Work Product for use as contemplated by this Marketing Services Agreement and any SOW; (iv) to assign to Client the Deliverables and Work Product as set forth in this Marketing Services Agreement, including without limitation the right to assign any Work Product and Deliverables created in whole or part by an Empower employee, consultant or subcontractor; and (v) to grant to Client any licenses granted under this Marketing Services Agreement, including any license to Empower Materials.
 
6.2.3 Empower shall not grant to a third party, directly or indirectly, any rights or interest whatsoever in any Work Product, and no portion of any Work Product is or shall be subject to any restrictions or to any mortgages, liens, pledges, security interests, encumbrances or encroachments.

6.2.4 Empower shall cause the Services to be performed strictly in compliance with the applicable SOW, this Marketing Services Agreement and generally accepted industry practices and obtain all licenses or permits required to comply with such laws, rules, ordinances and regulations. The Services, Deliverables and Work Product, and the use thereof as contemplated by this Marketing Services Agreement and the SOWs do not violate any applicable law, rule, ordinance and regulation and shall not knowingly infringe on any third party rights, including but not limited to: property, contractual, employment, Intellectual Property Rights, rights of publicity or privacy, or other proprietary rights of any person, whether contractual, statutory or at common law.  

 

7. INDEMNIFICATION.

7.1 Empower Indemnification.  Subject to Section 7.2Empower agrees to defend, indemnify and hold harmless the Client and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) arising from (a) Empower’s or its personnel’s breach of any representation, warranty, obligation, or covenant, or other breach or default by Empower of this Marketing Services Agreement, or any of the documents contemplated hereby or (b) any negligence, willful misconduct, errors or omissions of Empower or its personnel. 

7.2 IP Claims. In respect of any claim that all or any portion of the Services, Deliverables, Work Product, or the use thereof infringes any Intellectual Property Right of a third party, is a misappropriation of any third party trade secret, or violates any other rights of a third party (an “IP Claim”) where Client’s right to receive and use the Services and/or Deliverables, or any part(s) thereof, is or appears likely to be, restricted or prohibited in any manner as a result of an IP Claim, Empower’s sole obligation shall be, at its sole cost and expense, to promptly do one of the following:  (a) obtain for Client the right to continue receiving and using such Services and/or Deliverables free of claims of infringement, misappropriation and/or violation; (b) modify the Services and/or Deliverables so that they no longer infringe, misappropriate and/or violate (provided that such modification does not degrade the performance or quality of the Services and/or Deliverables or adversely affect Client’s use or intended use of the Services and/or Deliverables as contemplated by this Marketing Services Agreement); or (c) replace the Services and/or Deliverables with non-infringing, non-misappropriating and non-violating Services and/or Deliverables of equivalent or greater functionality.  In the event Client is unable, after exercising its best efforts to implement one of the options set forth in subsections (a), (b) or (c) above, Empower shall accept the return of the Deliverables and refund to Client an amount equal to the amounts paid by Client to Empower for the Deliverables and Services under the applicable Statement of Work, plus all out-of-pocket expenses and costs incurred by Client in connection with procuring substitute deliverables and services, to the extent such costs and expenses exceed the refunded amount.  Empower shall not be responsible for indemnifying Client or providing the remedies set forth in this Section 7.2 for any IP Claim to the extent any such IP Claim results from, and would not have occurred but for, (iClient’s unauthorized modification of any Work Product or Deliverable; or (ii) the inclusion of Client Materials in the Work Product and/or Deliverables, provided such materials have not been modified by Empower or used in an unauthorized manner.

7.3 Client Indemnification Client shall indemnify and hold harmless Empower, its directors, officers, employees, sublicensees, agents, attorneys, successors or assigns (collectively, the “Indemnified Parties”) against and from any third-party Claims, and shall pay all related damages, settlements and associated legal expenses, including reasonable attorneys’ fees that may be imposed on, incurred by or asserted against any Indemnified Party, resulting from, arising out of, or relating to: (i) to Client’s breach of any representation, warranty, obligation, or covenant, or other breach or default by Client of this Marketing Services Agreement, or any of the documents contemplated hereby and (ii) any negligence, willful misconduct, errors or omissions of Client

8. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO BREACHES OR OBLIGATIONS OF SECTIONS 5 (OWNERSHIP), 8 (INDEMNIFICATION) OR 9 (CONFIDENTIAL INFORMATION), NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS MARKETING SERVICES AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR BREACHES OR OBLIGATIONS OF OWNERSHIP, INDEMNITY OR CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN THE AMOUNT PAID BY CLIENT UNDER THE SOW GIVING RISE TO THE CLAIM. IN RESPECT OF EACH SOW GIVING RISE TO ONE OR MORE CLAIMS, THIS LIMITATION OF EACH PARTY‘S LIABILITY IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES IN CONNECTION WITH SUCH SOW BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. THE EXISTENCE OF ONE OR MORE CLAIMS IN RESPECT OF THE SAME SOW SHALL NOT ENLARGE THE LIMIT. 

 

9. CONFIDENTIAL INFORMATION

9.1 Confidentiality. All confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated in writing as confidential (“Confidential Information”) will be safeguarded by the Receiving Party to the same extent that the Receiving Party safeguards its own information of like kind, but using not less than a reasonable degree of care. The Receiving Party shall not use Confidential Information for any purpose outside the scope of this Agreement or disclose Confidential Information to any third party (except as explicitly stated in our Privacy Policy). The Receiving Party’s obligations under this section shall not apply to information which is publicly available through no fault of the Receiving Party, already in Receiving Party’s possession without obligation of confidentiality, rightfully obtained by Receiving Party from third parties, not under the obligation of confidentiality, or independently developed by Receiving Party as evidenced by written documentation. If the Receiving Party is requested pursuant to a court or government order to disclose Confidential Information, the Receiving Party will give the Disclosing Party written notice (if not legally prohibited from doing so) sufficient to enable the Disclosing Party to seek a protective order and the Receiving Party will cooperate with the Disclosing Party in such effort.

9.2 Notification Obligation.  If the Receiving Party becomes aware of any unauthorized use or disclosure of the Confidential Information, the Receiving Party shall promptly notify the Disclosing Party of all facts known to it concerning such unauthorized use or disclosure and take all reasonable steps to mitigate any potential harm or further disclosure, loss or destruction of such Confidential Information.  If the Receiving Party or any of its Representatives becomes legally compelled by applicable law, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar judicial or administrative process to disclose any of the Confidential Information, the Receiving Party shall, unless prohibited by applicable law, provide the Disclosing Party with prompt written notice of such requirement, and shall exercise commercially reasonable efforts to cooperate with the Disclosing Party (at the Disclosing Party’s expense) in any reasonable efforts by the Disclosing Party to obtain a protective order or similar remedy with respect to such Confidential Information.  In the event that such protective order or other similar remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that has been legally compelled, and shall cooperate with the Disclosing Party (at the Disclosing Party’s expense) in any reasonable efforts by the Disclosing Party to obtain assurance that confidential treatment will be accorded such disclosed Confidential Information.

9.3 Return/Destruction of Confidential Information.  The Client, may at any time, during the term of the Marketing Services Agreement or within ninety (90) calendar days after expiration or termination of this Marketing Services Agreement and/or SOW, as applicable, download for extraction any Confidential Information it may have provided to Empower.  

 

10. TERM; TERMINATION

10.1 Term. This Marketing Services Agreement shall take effect on the Effective Date and shall continue in effect for the term of any applicable SOW (the “Term”), unless: (i) earlier terminated pursuant to a right of termination specified in this Marketing Services Agreement or (ii) renewed pursuant to a written agreement or amendment executed by each Party hereto. 

10.2 Termination for Convenience. The Client may terminate any Statement of Work at any time by giving Empower written notice of termination thereof at least thirty (30) days prior to the date of termination. Empower may terminate this Marketing Services Agreement or any Statement of Work at any time by giving Client written notice of termination thereof at least thirty (30) days prior to the date of termination. The termination date of this Marketing Services Agreement or Statement of Work will be the day that such thirty (30 day period expires. 
 
10.3 Termination for Cause. Either Party may terminate this Marketing Services Agreement or any SOW for cause: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such notice period, or (ii) immediately if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. If the Client terminates this Agreement for cause, Empower will promptly credit any prepaid but unused fees covering the Services after the effective date of termination. If Empower terminates this Agreement for cause, the Client will promptly pay all fees due until the date of termination. If Empower terminates this Agreement for cause, the Digital Marketing Assistant Services Terms and Conditions of Use will automatically be terminated. 

 

11. GENERAL PROVISIONS

11.1 Notices. Notices to you shall be given to the email address on file associated with your Client Account. You agree to receive communications from us in an electronic form. All notices to you will be deemed received when sent. We may, but are not obligated to, provide communications in paper format. Notices to us shall be given to [email protected].

11.2 Assignment.
 Subject to Section 2.3., neither Party may assign this Marketing Services Agreementwithout the other Party’s written consent. 

11.3 Governing Law and Jurisdiction. This Marketing Services Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Marketing Services Agreement in Montreal, Quebec, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein.

11.4 Extended Meaning. Except as otherwise provided herein, the parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Marketing Services Agreement are for reference purposes only and have no substantive effect.

11.5 Force MajeureNeither party shall be liable for failure or delay of performance of its obligations resulting from any condition beyond its reasonable control (except for any payment obligation), including but not limited to, (a) acts of God; (b) flood, fire, earthquake, tsunami or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Marketing Services Agreement; (f) action by any Governmental Authority; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns or other industrial disturbances; (i) shortage of adequate power; (j) pandemics or epidemics.

11.6 Severability. If any provision of this Marketing Services Agreement is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, this shall not impair the operation of this Marketing Services Agreement or affect the other provisions which are valid.

11.7 No Waiver. No failure or delay by Empower to exercise any right or remedy will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.

11.8 Entire Agreement. This Marketing Services Agreement (including any relating SOW) and any other documents expressly contemplated hereby is the entire agreement between you and Empower with respect to the subject matter hereofIn the event of any conflict or inconsistency between this Marketing Services Agreement and any SOW, proposal, purchase order, acceptance notice or other document attached hereto and/or related to the subject matter of this Marketing Services Agreement, this Marketing Services Agreement shall control and govern over such other documents, except where a SOW expressly states that it is amending a specific provision of the Marketing Services Agreement, in which case such SOW shall control and govern over such specific provision.

11.9 Languages. You agree that this Marketing Services Agreement is written in the English language and that the English language version of this Marketing Services Agreement and any related document (including notices) shall prevail.

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