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1. THE SERVICES
Subject to the terms and conditions set forth herein, the Client retains the Contractor to provide it with the services (the “Services”), as may be amended from time to time. The “Services” shall include all content created by Contractor in rendering the Services hereunder.
3.1 In consideration for the performance of the Services by the Contractor, the Client shall pay the Contractor a Fee (the “Consideration”). Contractor agrees to manage Ad-Spend to the best of its ability, based on the performance guidelines provided by the Client.
3.2 Each calendar month, Contractor shall provide Client with a monthly invoice specifying the Ad-Spend for each Client Ad Account managed by the Contractor for the prior month. Client shall have the right to audit, to examine and to make copies of all financial and related records (in whatever form they may be kept) relating or pertaining to this Agreement kept by or under control of the Contractor.
3.3 Client will cover all Platform media costs directly with the media Platform.
4. RELATIONSHIP OF THE PARTIES
Agreements are not intended to constitute or create a joint venture, or other similar relationship of any kind. Client and Contractor shall be independent contractors with each other.
Each Party undertakes to maintain in strict confidence any business, commercial or other information disclosed to it by the other Party, in the course of, in connection with or in relation to, the performance of the Services, and not to disclose any such information to any other person or entity, other than as required by law or as necessary in performance and use of the Services by the other Party’s employees, principals and agents in connection with conducting that Party’s ordinary business activities. Except as specifically stated herein, each Party undertakes not to use, directly or indirectly, any information, documents or any material prepared by the other Party within the framework of this Agreement, other than in accordance with the written instructions of such other Party. In the event of a conflict between this Section and any Non-Disclosure (“NDA”) Agreement in place between the parties, the terms of the NDA shall govern.
6. LIMITATION OF LIABILITY, NO WARRANTY
ALL SERVICES PROVIDED BY KITTY’S CO ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, KITTY’S CO MAKES NO WARRANTIES, GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE EXCEPT AS EXPRESSLY SET FORTH HEREIN. KITTY’S CO IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CLIENT FROM KITTY’S CO OR FROM THE KITTY’S CO MARKETPLACE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL KITTY’S CO BE LIABLE TO CLIENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF KITTY’S CO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE ADVERTISING RELATIONSHIP PROVIDED HEREIN. CLIENT ACKNOWLEDGES THAT KITTY’S CO HAS AGREED TO PRICING IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THESE CONSIDERATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. CLIENT AGREES THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE THE TERMINATION OF THIS AGREEMENT AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
Client agrees to indemnify, defend and hold harmless Kitty’s Co, its parents, subsidiaries, shareholders, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys’ fees) asserted by any third party, including governmental entities, due to, arising from, or in connection with: any breach by either party of the terms of this Agreement including, without limitation, any representation or warranty contained herein; any fraudulent conduct committed or negligence by either party; all liabilities related to the Services described on page 1 of this Agreement, any investigation or governmental claim, and/or any intellectual property claims associated with any and all copy and images supplied by both parties and its associated usage thereof.
These Terms and Conditions shall be governed by, interpreted and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.
Contractor warrants that the Services will be performed in a good and workmanlike manner in accordance with standard industry practices and the specifications.
10. INTELLECTUAL PROPERTY
Client shall retain ownership of all content it provides during the provision of the Services. Contractor shall retain ownership of all content it provides during the provision of the Services.
Client may not assign, transfer, subcontract or sublicense, in whole or in part, this Agreement, any Insertion Order or any of its rights or obligations under this Agreement, without Kitty’s Co's prior written consent. Any attempt to assign this Agreement other than as permitted above will be considered void and invalid. Subject to the foregoing, the terms and conditions will be fully binding upon, inure to the benefit of and be enforceable by, the parties’ respective permitted assigns, successors, heirs, executors, administrators and permitted assigns.