Communo Terms of Service
Last Updated: February 3rd, 2022
Communo Corp. (“Communo“) owns and operates the Platform and the Services. By clicking ‘accept’ to the Terms of Services, using the Platform (including the Communo website) or Services (such use or acceptance, the “Effective Date“), you acknowledge that you have read, accept and agree to be bound by and comply with the terms and conditions set out in these Terms of Service, as amended from time to time in accordance with Section 15(d).
These Terms of Service form an agreement between Communo and the person or entity browsing, installing, downloading, accessing, or otherwise using the Services (“use” or “using” in these terms of service will mean any of the foregoing) (“you”, “your” or “User“).
You represent and warrant that you:
- (i) Have reached the legal age of majority in your jurisdiction,
- (ii) Have the capacity to enter into binding obligations,
- (iii) Will supply through the Services only information that is true, accurate, current, and complete;
- (iv) Will immediately cease any further use of the Platform and Services if you do not accept and agree to be bound by these Terms of Service; and
- (v) Agree to be bound by and comply with these Terms of Service and the relevant terms of any other contract you may have with Communo, as updated from time to time.
If you are using the Platform or Services on behalf of another person, you hereby represent and warrant to Communo that you have the authority to bind such person to these Terms of Service.
1. Communo’s Platform and Services
- 1.1 The Platform. Communo provides a proprietary platform and website (“Platform“) as well as professional services (“Services“) to help brands, advertisers, marketing agencies, and creative professionals connect and collaborate to create marketing and advertising campaigns and creative projects (“Creative Content“).
- 1.2 Access to the Platform. Subject to your compliance with the terms and conditions of these Terms of Service (including signing up for an Account where applicable and complying with the User code of conduct set out in Section 8), Communo will make the Platform available to you on the terms and conditions set out in these Terms of Service.
- 1.3 Suspension of Access; Modifications. Communo may, from time to time and at Communo’s discretion without limiting any of Communo’s other rights or remedies at law or in equity under these Terms of Service:
- (a) suspend your access to or use of the Platform; or
- (b) make any modifications to the Platform.
- 1.4 Technical Support. Communo will provide you with access to technical support for the Platform:
- (b) via Communo’s knowledge base and documentation available online at https://communo.zendesk.com.
- 1.5 Service Levels. Communo will use commercially reasonable efforts to achieve 99% Platform uptime and will use commercially reasonable efforts to provide notice at least 48 hours in advance for scheduled maintenances within normal business hours.
- 1.6 Relationship. You acknowledge and agree that Communo will not control the relationship between Corporate User and the Creative Professional, whether through the Recruitment Services, a Project Agreement, or a Managed Campaign Agreement. Communo merely provides the Platform for Corporate User and Creative Professional to connect. At no time does Communo: (a) have the power or ability to require a Creative Professional to start or stop work; (b) determine any terms of a Project Agreement or employment agreement, including pay, work hours, vaccination obligations, performance requirements, or termination; (c) act as an employer or joint employer. Creative Professional will be responsible for complying with Corporate User’s policies.
- 2.1 Account Creation. To access and use the Platform and the Services, you must register for an account (“Account“), either as: (a) a brand, agency, corporation, or other entity seeking to connect with Creative Professionals (a “Corporate User“) or (b) a freelancer, independent contractor, project manager, strategist, developer, creative professionals, or other professional seeking to connect with Corporate Users (“Creative Professional“). There are additional terms in these Terms of Service that will apply to you depending on which type of user you are and how you use the Platform and the Services.
- 2.2 Eligibility. As User, you are solely responsible for ensuring that your use of the Platform and Services in accordance with these Terms of Service in your jurisdiction of residence is permitted by law or regulation. If such use is not so permitted by applicable law, Communo prohibits all use and access to the Platform and Services.
- 2.3 Social Media Information. Upon registering for an Account, you may decide to or be required to integrate your Account with a third-party social media account (e.g., LinkedIn). In connection with such integration, you authorize Communo to obtain certain information about you from your social media account, including personal information, such as your name, profile information, profile picture, social media account metrics, number of followers and any information that you may make publicly available on or through the social media account (“Social Media Information“). Communo may include some or all of this Social Media Information in your Account and your Account Profile, and this information may be visible to other Users or visitors to the Platform. You agree to provide current, complete, and accurate information and to promptly update all account information to keep your Account current, complete and accurate. You may change or update your Account at any time.
- 2.4 Account Conﬁdentiality. You are responsible for maintaining the confidentiality of your User ID and password. Communo strongly recommends that you do not disclose your User ID or password to anyone. You agree to notify Communo if you become aware of a potential breach of security, such as unauthorized disclosure of your User ID and password. You may not transfer, assign, or sell your Account to another party without Communo’s prior written agreement.
- 2.5 Agency Accounts. If you are a Corporate User, you also have the option to create an agency account (“Agency Account“) and add other Users to your Agent Account (“Agency Account Users“) authorized by you to act on your behalf. The Agency Account may grant Agency Account Users certain administrative privileges. You are responsible for ensuring that all use of the Platform and Services by Agency Account Users complies with these Terms of Service, and you are liable for all actions of Agency Account Users in the Agency Account.
- 2.6 Account Termination by Communo. Communo may terminate, suspend, or otherwise restrict or prohibit access to the Platform and the Services, remove your Account, remove hosted Creative Content or User Content, and take technical and legal steps to prohibit you from using or accessing the Platform or the Services for any reason and without prior notice.
- 2.7 Account Closure by User. Your Account can only be closed once all obligations (including payment obligations, if applicable) in association with the Agency Account have been satisfied by you, and you have: (i) provided written notice to [email protected] and received written confirmation from Communo; or (ii) or followed the Account closure process on the Platform. See Section 14 (Termination) for more information.
- 2.8 Account Profile. When you register for an Account, you will complete a User profile (“Account Profile“) which will be shown to other Users of the Platform and the Services. Your Account Profile may include: examples of your past work, your rates, and details of how Creative Content will be created and executed (“Account Content“).
3. Fees and Payment
- 3.1 Subscription Fees. In consideration for access to certain features of the Platform and the Services, you will pay Communo the fees as determined by your subscription level (“Subscription Fees“). The Subscription Fees will be charged in accordance with the time period described when you register for an Account.
- 3.2 Self-Service Freelance Fees. If you are a Corporate User, you agree to pay Communo 20% of any Creative Professional Fees in consideration for Communo’s administrative services (the “Freelance Fees“) unless otherwise specified by a subscription agreement.
- 3.3 Recruitment Fees. If you are a Corporate User using a Communo recruiter to perform Recruitment Services and there is a successful Placement, you agree to pay Communo a fee up to 40% of the Creative Professional’s estimated total first year’s compensation, including estimated commissions, bonuses, and any signing bonus (the “Direct Recruitment Fees“), unless otherwise specified by a recruitment agreement. If you are a Corporate User and a Creative Professional accepts employment directly with you within 12 months of executing a Project Agreement, you agree to pay Communo 25% of the Creative Professional’s estimated total first year’s compensation, including estimated commissions, bonuses, and any signing bonus (the “Indirect Recruitment Fees“). Together, the Indirect Recruitment Fee and the Direct Recruitment Fee are the “Recruitment Fees“. For the purpose of clarity, the Recruitment Fees are not refundable or subject to a reduction, even if the Creative Professional’s employment terminates.
- 3.4 Managed Campaign Fees. If you are a Corporate User, you will pay Communo any fees as agreed-upon in the Managed Campaign Agreement (“Managed Campaign Fees“).
- 3.5 Fees. The Subscription Fees, Recruitment Fees, Managed Campaign Fees, and the self-service freelance Fees are collectively the “Fees”.
- 3.6 Changes to the Fees. Communo reserves the right to change the Fees and institute new charges upon providing you at least 60 days’ prior notice.
- 3.7 Disputed Fees. If you believe Communo has charged or invoiced you incorrectly, you must contact Communo no later than 30 days after having been charged by Communo or receiving such invoice in which the error or problem first appeared in order to request an adjustment or credit. In the event of a dispute, you will pay any undisputed amounts in accordance with the payment terms herein, and you agree to discuss the disputed amounts with Communo in good faith in order to resolve the dispute as set out in these Terms of Service.
- 3.8 Late Payment. You may not withhold or setoff any amounts due under these Terms of Service. Communo reserves the right to suspend your access to the Platform and any delivery of the Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of two percent (2%) compounded monthly (26.82% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
- 3.9 Taxes. The Fees set out in these Terms of Service do not include applicable sales, use, gross receipts, withholding, value-added, GST or HST, personal property or other taxes (“Taxes“). You are responsible for and must pay Taxes (including interest and penalties imposed thereon) on the transactions contemplated in connection with these Terms of Service, other than taxes based on the net income or profits of Communo.
- 3.10 Suspension. Any permitted suspension of the Platform or Services by Communo pursuant to the terms of these Terms of Service will not excuse you from your obligation to make payments under these Terms of Service.
- 3.11 Currency and Processing Fees. All amounts on the Platform are listed in United State Dollars. Communo is not responsible for changes in currency exchange rates or any processing fees charged by Communo’s or your payment processors.
- 3.12 Fee Avoidance. You agree that you will not take any action to circumvent any payment for the Platform or the Service to Communo or otherwise avoid any Fees or other amounts payable to Communo.
- 3.13 Exclusivity Period. You agree that, for a period of 12 months after the date you enter into a Project Agreement with another User or in a Managed Campaign Agreement, as applicable, you will only use the Platform or Services as your sole and exclusive method to communicate and engage with, or solicit engagements from, the other Users that you have worked with directly or indirectly in respect of such Project Agreement or Managed Campaign Agreement, such work to include, without limitation, sponsorships, marketing, promotional, or endorsement work.
4. PRIVACY OR Personal Information
5. Corporate User Campaigns
- 5.1 Corporate User Campaigns. Corporate Users may use the Platform to connect with Creative Professionals to provide their services for marketing and advertising campaigns and creative projects (“Corporate User Projects“). To initiate a Corporate User Project, Corporate Users will submit a campaign brief to the Platform via the campaign launch tool on the Platform which outlines the requirements for the Corporate User Project such as budget, design and creative, target audience and duration (“Project Brief“). The Project Brief may also contain details of how a Corporate User Project will be created and executed, including terms under which the Corporate Users pay the Creative Professional fees (“Creative Professional Fees“).
- 5.2 Project Agreement. In addition to consenting to the terms of a Project Brief and any related quotes, as applicable, Corporate Users and Creative Professionals must enter into a separate agreement that sets out the details of how a Corporate User Campaign will be created and executed (“Project Agreement“) prior to the initiation of a Corporate User Project. All Corporate User Projects are governed, as applicable, by the Project Agreement and any other documents referenced therein. Communo will not assist with any Corporate User Project or any disputes between Users related to a Project Agreement.
- 5.3 Content of the Project Agreement. At a minimum, all Project Agreements will include:
- (b) a process for Corporate User to review and approve all Creative Content;
- (c) instructions for how Creative Professional can use, display, and share the Creative Content;
- (d) a dispute resolution process; and
- (e) the development and design of the Creative Content.
- 5.4 Communications. You agree to provide a copy of the Project Agreement immediately following execution to Communo. You further agree to conduct all communications regarding a Project Agreement in the Platform provided for the Project Agreement or to upload/transcribe all related communications, including written agreements and changes to a Project Agreement, emails, telephone calls, and discussions regarding content requirements, through the Platform. This process is required to maintain an electronic record of all required elements of a Project Agreement.
- 5.5 Records. You also agree to keep and maintain accurate and complete records related to a Project Agreement for at least two years following the completion of the Project Agreement. Communo reserves the right to request these records and other relevant documentation, which you agree to provide to Communo within 10 days of Communo sending the request. You are responsible for maintaining copies of any records that you are legally required to maintain under applicable laws, including record retention obligations under applicable taxation legislation.
5.6 Removal of Records. Communo does not provide an archiving service. Once your Account is terminated, Communo may delete all of your User Content. Communo expressly disclaims all other obligations with respect to the preservation or storage of your User Content.
6. Provision of Managed Campaigns
- 6.1 Managed Campaign. Corporate Users may engage Communo to provide bespoke management services to assist with the design and curation of a brand, advertising campaign, or creation of Creative Content on the Corporate User’s behalf (each a “Managed Campaign“).
- 6.2 Managed Campaign Agreement. Managed Campaigns not available for all Corporate Users. A Subscription to the Platform may be required as a condition for the provision of a Managed Campaign. If User is interested in initiating a Managed Campaign, User must contact Communo directly at [email protected] and enter into a “Managed Campaign Agreement” with Communo, which will include a mutually agreed upon process and fees. Managed Campaigns may entitle User to end-to-end Creative Content curation and management services based on User’s unique requirements and objectives.
6.3 Decline of a Managed Campaign Agreement. Communo reserves the right to decline a Managed Campaign Agreement for any reason at its sole discretion, including where Communo, acting in good faith, believes that the Managed Campaign will adversely affect the name, goodwill or reputation of Communo.
7. Recruitment services
- 7.1 Recruitment Services. Corporate Users may use the Platform to connect with Creative Professionals who are interested in employment opportunities with the Corporate User with assistance from a Communo Recruiter (the “Recruitment Services”). Corporate Users are solely responsible for their employment opportunities posted on the Platform (“Job Posts“). Communo may limit the number of Job Posts you can create at Communo’s discretion. To learn more about recruitments services please email [email protected]
- 7.2 Placements. If a Creative Professional applies for an opportunity in response to a Job Post and is hired, directly, or indirectly, by Corporate User for any employment position with Corporate User or its affiliates, parents, or subsidiaries, that shall be considered a “Placement”.
- 7.3 Replacement. In the event the employment of a Creative Professional in connection with the Recruitment Services lasts less than 3 calendar months, and provided that Recruitment Fees have been paid, Communo will attempt to refer a replacement Creative Professional for the same position at no additional charge to Corporate User. Communo’s obligation under this agreement is limited to attempting to find a replacement candidate. No refund will be made if Communo hires a replacement from any source, or if Corporate User is no longer actively seeking to fill the position.
- 7.4 Limitations. In addition to the obligations set out in Section 9, you represent and warrant that Job Posts will:
- (a) Comply with applicable laws relating to labour and employment, equal employment opportunities, and employment eligibility requirements;
- (b) Not require citizenship or lawful permanent residence in any country as a condition of employment, unless requirement in order to comply with law;
- (c) Not contain any screening requirements or criterion where such requirements are not an actual and legal requirement of the role;
- (d) Only be related to reasonable and legitimate paid employment opportunities;
- (e) Not misrepresent the role, hiring company, or poster; and
- (f) Not require payments or recruitment of others or that resemble multi-level marketing, club memberships, franchises, or otherwise be commission-based.
- 7.5 Additional Recruitment Services. Communo may conduct background checks and reference checks on Creative Professionals if requested by Corporate User in connection with a potential Placement. All such requests must be in writing and must specify the scope of the background check requested. All background and reference checks will be conducted at Corporate User’s expense at Communo’s standard rates.
7.6 Communications. Any offers to employ Creative Professionals, either verbal or written, must be submitted to Communo. Communo will facilitate the communication between Creative Professionals and Corporate Users in negotiating final contracts (“Job Offer Phase”), if there are any changes to the scope of employment during the time between date of Job Post and Job Offer Phase, Corporate User must notify Communo and will not contact Creative Professionals without Communo’s consent.
8. User Conduct AND USER CONTENT
- 8.1 User Conduct. You must only use your Account in a responsible manner and respect the privacy of other Users. You will not access or use the Platform or Services to:
- (a) sub-license, sell, rent, lend, lease or distribute the Platform or any intellectual property rights therein, or otherwise make the Platform available to any third parties;
- (b) permit timesharing, service bureau use or commercial exploitation of the Services;
- (c) violate any applicable law or intellectual property right;
- (d) threaten the security or functionality of the Platform;
- (e) create, collect, transmit, store, use or process any data: (A) that User does not have the lawful right to create, collect, transmit, store, use or process; (B) that is inaccurate, false, or misleading; (C) that violates any applicable laws, including employment and intellectual property laws; (D) that infringes, violates or otherwise misappropriates the intellectual property rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (E) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- (f) attempt to reverse engineer, de-compile or disassemble the Platform;
- (g) access or use the Platform for the purpose of building a similar or competitive product or service;
- (h) upload, post or otherwise make available any material that contains viruses, malware or other malicious software;
- (i) perform any vulnerability, penetration or similar testing of the Platform;
- (j) promote or engage in any unlawful or illegal activities or internet abuse, including unsolicited advertising and spam;
- (k) promote, upload, post, or otherwise make available any material that is abusive, harassing, obscene, vulgar, hateful, sexually explicit, invasive of another’s privacy, defamatory or otherwise objectionable or illegal, or that discriminates based on race, gender, religion, nationality, disability, sexual orientation, age, family status or any other legally protected class;
- (l) make any false representation, including creation of a false identity, impersonation of any person or entity or misrepresentation of User’s affiliation with any person or entity; or
- (m) track, trace, harvest, or otherwise collect or store any information, including personal information, on any Account or any other User of the Platform, without the express consent of such User(s).
- (n) Request that Creative Professionals provide any type of service for free. With the exception for sample work for applicant screening purposes in the recruitment or contracting of Creative Professionals which is to be limited to a maximum of 1 hour of time.
- 8.2 User Content. Communo allows you to interact with and publish information on the Platform (“User Content“). User Content includes any and all Account Content or Creative Content.
- (a) You agree and understands that any User Content that you provide or accept may be viewed by the general public and will not be treated as private, proprietary or confidential.
- (b) You are solely responsible for the User Content that you make available through the Platform and you will ensure that: (A) you own or has all necessary rights to use the User Content; (B) the provision of the User Content will not infringe or violate any patent, copyright, trade-mark, or other intellectual property right, or any right of privacy or publicity of any third party; and (C) the User Content does not violate any applicable law or regulation.
- (c) You agree and understand that the other Users maintain editorial control over their User Content, and without their permission you are not permitted to make any editorial changes to such User Content.
- (d) You agree to adhere to the following professional standards: (A) User Content must not contain material that violates or infringes another’s rights, including but not limited to privacy, publicity or intellectual property rights, or that constitutes copyright infringement, or that is unlawful, in violation of or contrary to any applicable law or regulations; (B) User Content must comply with applicable laws as well as with any applicable and mutually agreed-upon guidelines between Corporate User and Creative Professional; (C) User Content must not disparage any party or person; (D) User Content must not contain material that is inappropriate, indecent, obscene hateful, tortious, defamatory, slanderous or libelous, threatening, indecent, violent, offensive, refers to dangerous, unlawful or illegal acts, promotes a political agenda or contains any criminal or civil liability; and (E) User Content must not contain material that promotes bigotry, racism, hatred or harm against any group or individual or promotes discrimination based on race, gender, religion or religious beliefs, nationality, disability, sexual orientation or age.
- (e) Communo reserves the right to delete any User Content that Communo, at Communo’s sole discretion, deems to be in violation of the law (including trademark and copyright law), to be in violation of these Terms of Service, or to be abusive, defamatory, obscene or otherwise unacceptable. Communo reserves the right to edit, remove, or refuse to post any User Content or terminate your Account for any reason.
- (f) Communo does not pre-screen User Content. Communo does not guarantee that the Platform will be free of User Content that is inaccurate, deceptive, offensive, threatening, defamatory, unlawful or otherwise objectionable. Even in the event that Communo chooses to monitor any User Content, Communo assumes no responsibility for, or any obligation to monitor or remove, such User Content.
- 8.3 Compliance with Applicable Laws, including Marketing Laws
- (a) You agree to comply with any and all laws, rules, regulations and other legal requirements with respect to sponsored posts, including, if applicable, 16 CFR Part 255 – Guides Concerning the Use of Endorsements and Testimonials in Advertising and any other applicable laws and requirements published by the Federal Trade Commission, and influencer marketing and competition requirements under the Competition Act and any other applicable Canadian federal or provincial laws. Examples of required disclosures that may be acceptable include #ad, #paid, or #sponsored, which must be conspicuously displayed within a post.
(b) The foregoing is provided for informational purposes only and does not constitute legal advice. It is User’s sole and exclusive obligation to consult User’s own professional legal advisors and ensure the compliance of all posts in the applicable jurisdiction(s). The foregoing disclosure obligation is a mandatory and material term of all Project Agreements and Managed Campaign Agreements.
9. Grant of Rights and Ownership
- 9.1 Ownership of Platform. The Platform and Services are owned and operated by Communo. Any and all content, data, graphics, photographs, images, audio, video, software, trademarks, service marks, trade names, logos, trade dress, patents, copyrighted or copyrightable materials and other information (collectively, the “Communo Content“) contained in or made available through the Platform and Services are proprietary to Communo, its affiliates and/or third party licensors. The Communo Content is protected by international copyright and trademark laws and is the confidential information of Communo.
- 9.2 Use of the Communo Content. You may download, print and reproduce the Communo Content for your purposes related to receipt of the Services during the Term. Any other use of the Communo Content in whole or in part, including but not limited to adapting, displaying, distributing, publishing, storing in a retrieval system, transmitting, converting, copying or issuing copies, lending or reproducing the Communo Content in any other form or by any other means whatsoever, whether electronic or otherwise, and including making the same available to or via the internet or wireless technology or authorizing any of the foregoing without the prior written consent of Communo, is strictly prohibited. To obtain written consent for such use, please contact Communo at [email protected]
- 9.3 Right to the Communo Content. You agree that any use of the Communo Content by you and the goodwill associated with such use will inure to Communo’s benefit. You agree and acknowledge that you will not acquire any interest in the Communo Content or the goodwill associated with the Communo Content by virtue of these Terms of Service or Your use of the Communo Content, Platform, or Services.
- 9.4 License to User Content. You hereby grant a non-exclusive, fully-paid up, royalty-free, perpetual, sublicensable worldwide license and irrevocable right for Communo to create, and to collaborate and permit other Users to create, Communo Content using any intellectual property described in a Project Agreement or Managed Campaign Agreement you enter into.
- 9.5 Ownership of User Content. All right, title and interest, including without limitation, all intellectual property rights in, and to any User Content, including all photographs, images, videos, audio, works of art, original writing, drawings, derivatives, compositions, creations and inventions developed by a User will be owned exclusively by that User, unless otherwise agreed to in a Project Agreement or Managed Campaign Agreement.
- 9.6 Rights Granted to Communo. You hereby grant Communo a non-exclusive, royalty-free, perpetual, and irrevocable right to use, reproduce, and communicate the name and trademark of your company or organization (“User Marks“) as a User of the Platform or Services in any media whatsoever, including in Communo’s marketing materials during and after the Term. Communo agrees that it will not acquire any interest in the User Marks and the goodwill associated with Communo’s use of the User Marks will inure to your benefit.
9.7 Third Party Content. The Platform may include links to other sites on the Internet that are owned and operated by third parties and therefore not affiliated with Communo. Please understand that such linked websites are independent from Communo, and Communo has no control over the content of such websites. Consequently, Communo cannot be held liable for and makes no warranty or representation whatsoever as to the accuracy, timeliness and/or completeness of the information contained on such websites. Such websites may be governed by terms and conditions different from those applicable to Communo’s Platform, and Communo encourages you to review the terms and privacy policies of those third parties before using their websites. The links which Communo might place on the Platform do not imply that Communo sponsors, endorses or is affiliated or associated with, or has been legally authorized to use any trade-mark, trade name, service mark, design, logo, symbol or other copyrighted materials displayed on or accessible through such sites.
- 10.1 Confidential Information. You and Communo will maintain the confidentiality of all confidential information disclosed by each party to the other, including details in connection with or as a result of entering into these Terms of Service, Managed Campaign Agreement or any other agreement, as applicable, including, without limitation, information concerning the other party’s past, present or future customers, suppliers, technology or business, marketing and consumer research, market potential information, consumer data, clinical data, formulas, product applications, potential consumer use information, operating plans, financial data, business and/or marketing plans, forecasts, designs, prototypes, concepts, trade secrets, software, know-how, formulae, and product specifications, as well as all data compilations, analyses, conversations, discussions, descriptions and expressions of opinions (“Confidential Information“). Confidential Information will not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to the other party, (ii) becomes publicly known and made generally available to the public through no action or inaction of the other party, (iii) is obtained by the other party from a third party without a breach of such third party’s obligations of confidentiality, or (iv) is independently developed by the other party without use of or reference to the Confidential Information, as shown by competent evidence in the other party’s possession.
- 10.2 Obligations. You and Communo agree that during and at all times thereafter neither party will, except to exercise their rights or perform their obligations under these Terms of Service: (i) disclose Confidential Information of the other party to any person, except to their own personnel or affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than these Terms of Service, and to such other recipients as the other party may approve in writing, (ii) use Confidential Information of the other party, or (iii) alter or remove from any Confidential Information of the other party any proprietary legend. You and Communo will take industry standard precautions to safeguard Confidential Information, which will in any event be at least as stringent as the precautions that each party takes to protect its own Confidential Information of a similar type.
- 10.3 Exceptions. Notwithstanding Section 10.2, you or Communo may disclose the other party’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the party required to disclose promptly notifies the other party in writing of such required disclosure and cooperates with the other party to seek an appropriate protective order, (ii) to your or Communo’s legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with your Communo’s business, or (iii) to potential assignees, acquirers or successors if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving either party’s business or assets.
You represent and warrant that:
- (a) You have the authority and right to enter into these Terms of Service and any Project Brief, Managed Campaign Agreement, or Project Agreement and has obtained all rights and waivers necessary to grant the rights, titles and interests granted thereunder; and
- (b) You will comply with all applicable laws, by-laws, rules, regulations and guidelines, including requirements and standards related to advertising and marketing, competition, intellectual property, consumer protection and privacy.
12. Disclaimer and limitation of liability
- 12.1 EXCLUSIONS. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES AND THE EXCLUSION OR LIMITATION OF REPRESENTATIONS MADE CONCERNING COMMUNO’S GOODS OR SERVICES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
- 12.2 USE AT YOUR OWN RISK. YOUR USE OF THE PLATFORM AND THE SERVICES IS ENTIRELY AT YOUR OWN RISK. COMMUNO DOES NOT CONTROL THE CONTENT OF POSTINGS BY ITS USERS. THE PLATFORM, INCLUDING THE CONTENT AND SERVICES PROVIDED HEREIN, IS BEING PROVIDED ON AN “AS IS” AND “WHERE IS” BASIS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. COMMUNO HAS NO CONTROL OVER AND DOES NOT GUARANTEE THE TRUTH OR ACCURACY OF ANY ACCOUNT PROFILE, USER CONTENT, PROJECT BRIEF, PROJECT AGREEMENT, OR MANAGED CAMPAIGN AGREEMENT CONTAINED IN THE PLATFORM. COMMUNO HAS NO CONTROL OVER AND DOES NOT GUARANTEE ON ANY USER’S ABILITY TO COMPLY WITH ITS COMMITMENTS.
- 12.3 DISCLAIMER. COMMUNO AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY REGARDING THE PLATFORM, THE SERVICES, THE PROJECTS, AND RELATED MATERIALS, INCLUDING ANY WARRANTY AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY AND NON-INTERFERENCE OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. COMMUNO AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS DO NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS OR QUALITY OF THE PLATFORM, THE SERVICES, OR THE POSTINGS OF ANY USERS, INCLUDING CONTENT POSTED ON OR LINKED FROM THE PLATFORM OR THE SERVICES. COMMUNO AND ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS DO NOT WARRANT THAT THE PLATFORM IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION OR THAT THE PLATFORM AND SERVICES WILL MEET USER’S REQUIREMENTS. USER ASSUMES ALL RISKS ASSOCIATED WITH USING OR RELYING ON THE PLATFORM AND SERVICES, INCLUDING ANY LISTINGS BY USERS.
- 12.4 LIMITATION OF LIABILITY. THE ENTIRE CUMULATIVE LIABILITY OF Communo AND ITS AFFILIATES, AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS, AND YOUR EXCLUSIVE REMEDY, FOR ALL MATTERS OR CLAIMS ARISING FROM OR RELATING TO THE PLATFORM AND THE SERVICES WILL BE LIMITED TO THE FEES PAID BY YOU, IF APPLICABLE, FOR THE PLATFORM AND SERVICES IN THE PRECEDING SIX MONTHS.
- 12.5 CONSEQUENTIAL DAMAGES. COMMUNO ITS AFFILIATES AND ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL PUNITIVE, CONSEQUENTIAL DAMAGES, DAMAGES ON ACCOUNT OF LOSS OF PROFITS, OR OTHER DAMAGES ARISING OUT OF OR RELATING TO A COMPLETED OR NON-COMPLETED CAMPAIGN OR OTHER TRANSACTION BETWEEN USERS OR ANY MISREPRESENTATION BY A USER, INCLUDING WITH RESPECT TO A PROJECT, CREATIVE CONTENT, OR THE SUBJECT OF ANY TRANSACTION WITH ANOTHER USER. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY IRRESPECTIVE OF WHETHER THE ALLEGED LIABILITY IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF Communo OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, EMPLOYEES, AGENTS, AND LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- 13.1 Communo Indemnity. Communo agrees to indemnify and hold you harmless from and against any and all losses, expenses, damages, claims, fines, penalties, costs and liabilities (including all legal and accounting fees), arising from or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action“) by a third party (other than your affiliates) that arise from or relate to any allegation that Communo’s Platform or Services infringe any third-party intellectual property right in Canada. The foregoing obligation does not apply to any Action or losses arising out of or relating to any: (i) incorporation of Communo’s Platform or Services into, or any combination, operation, or use of Communo’s Platform or Services with, any products or services not provided or authorized by Communo, unless such infringement would also have resulted solely from the use of Communo’s Platform or Services without their incorporation in, or combination, operation or use, with such other products or services, (ii) modification of Communo’s Platform or Services other than by Communo or with Communo’s express written approval, (iii) any User Content; or (iv) unauthorized use of Communo’s Platform or Services.
- 13.2 User Indemnity. You agree to indemnify and hold harmless Communo, its affiliates, officers, employees, and agents from and against any and all losses, expenses, damages, claims, fines, penalties, costs and liabilities (including all legal and accounting fees), arising from or relating to: (i) Your use of the Platform and Services, including any obligations to pay in association with a Subscription, Project Brief, or Project Agreement or other agreement, (ii) any representation or misrepresentation by you in any content that you (or anyone acting in your Account or Agency Account which you own) submits, posts, transmits or makes available on the Platform or through the Services, including with respect to information in your Account Profile or User Content, (iii) your completion or failure to complete a contract with another User, (iv) any liability arising from the tax treatment of payments or any portion of any payments, (v) your dispute of or failure to pay any amounts owing in association with a Subscription, Project Brief, or Project Agreement or other agreement, (vi) your liability arising from violation of any law, including intellectual property laws, and (vii) any violation by you these Terms of Service.
- 13.3 Indemnification Process. You agree that, at Communo’s option, you will conduct the defense of any claim or action under Section 13.2; provided that, notwithstanding Communo’s election that you conduct the defense, (i) Communo may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Communo (which approval will not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
- 13.4 Equitable or Implied Indemnification. No person or entity will be entitled to any form of equitable or implied indemnification at any time, except as provided by these Terms of Service.
14. Account and Subscription Terms
- 14.1 Term. These Terms of Service will commence on the Effective Date and continue to be in effect until either party terminates them (the “Term“).
- 14.2 Termination by Communo. Communo may terminate these Terms of Service, effective immediately, on written notice to you.
- 14.3 Termination by User. To close your Account and terminate these Terms of Service, you must provide written notice to Communo by sending an email to [email protected] or following the Account closure process on the Platform. Accounts will be closed following 30 days’ notice with express written confirmation from Communo provided that (i) all obligations associated under your Account have been satisfactorily completed, and (ii) any disputes in which you have been involved have been satisfactorily settled.
- 14.4 Termination of Managed Campaign Agreement. The termination of a Managed Campaign Agreement will be subject to the termination provisions in such Managed Campaign Agreement.
- 14.5 Effect of Termination. Upon termination or expiration of these Terms of Service, you will immediately (i) pay any Fees due to Communo; (ii) cease accessing or using the Platform and (iii) delete or if requested by Communo return any Communo Confidential Information in your possession and certify in writing to Communo that it has been deleted or destroyed. No expiration or termination will affect your obligation to pay all Fees that may have become due before such termination, or entitle you to any refund. Upon termination of an Agency Account, all associated Accounts will be deleted. Once your Account is terminated, you will no longer have access to any information within your Account. Notwithstanding anything to the contrary contained in these Terms of Service, you will not receive any refund or reimbursement of Fees resulting from the termination these Terms of Service or Managed Campaign Agreement by either party, for any reason.
- 14.6 Survival. The following Sections, together with any other provision of the Terms of Service which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms of Service, will survive expiration or termination for any reason: Section 3 (Fees and Payment), Section 9 (Grant of Rights and Ownership) Section 10 (Confidentiality), Section 11 (Warranties ), Section 12 (Disclaimer and Limitation of Liabilities), Section 13 (Indemnification) Section 14.5 ( Effect of Termination), Section (Return of Customer Data), Section 14.6 (Survival), and Section 5 (General Provisions).
- (a) Definitions and Capitalized Terms. All capitalized terms not defined herein will have the meanings set forth in the Project Brief or Project Agreement, as applicable.
- (b) Governing Law. These Terms of Service are governed by the laws of the Province of Alberta, Canada and the federal laws of Canada applicable therein without regard to the principles of conflict of laws. The parties will initiate any lawsuits in connection with this Agreement in Calgary, Alberta and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
- (c) Notice. Notices to you may be made via email or regular mail, or in cases of changes to these Terms of Service or to the Services offered through the Platform, by posting notices or links to such notices, or by posting an updated version of these Terms of Service on the Platform itself.
- (d) Changes to Terms of Service. Communo reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Platform and Services (or any part thereof) with or without notice. Communo reserves the right to change these Terms of Service at any time and from time to time. Any new features that may be added to the Platform or Services from time to time will be subject to these Terms of Service, unless stated otherwise. You are responsible for regularly reviewing these Terms of Service, including, without limitation, by checking the date of “Last Update” at the top of this document. Communo may also, at Communo’s option, choose to notify you of such changes by e-mail or other means. If the modified Terms of Service are not acceptable to you, your only recourse is to stop using the Platform and Services. Your continued access to and use of the Platform or Services will constitute the Effective Date to such updated Terms of Service.
- (e) Force Majeure. Excluding your payment obligations, neither party will have any liability for any failure or delay resulting from any event beyond the reasonable control of that party including, without limitation, fire, flood, storms, insurrection, war, terrorism, earthquake, power failure, civil unrest, explosion, embargo, or strike.
- (f) Language. It is the express wish of User and Communo that these Terms of Service be drafted in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
- (g) Subcontracting. Communo may engage third parties to provide the Platform and Services.
- (h) Relationship with Communo. No agency, fiduciary, partnership, joint venture, employee/employer, franchisor-franchisee is intended or created by your use of Communo’s Platform or Services.
- (i) Entire Agreement. These Terms of Service and an executed Managed Campaign Agreement, as applicable, will represent the entire agreement between User and Communo and cannot be overridden by terms contained in any later received document, unless the additional terms are accepted in writing by both User and Communo.
If you have any questions or comments regarding these Terms of Service please contact Communo at s[email protected].