Brkaway Brand Terms of Service

Terms of Service – Brand

These Terms of Service (the “Agreement”) between you (the “Subscriber”, “your”, “you”, etc.) and Brkaway Media Inc. (the “Company”, “our”, “we”, etc.) govern all aspects of your relationship with the Company and the Company’s independent content creators (each, a “Content Creator”). The Company and the Subscriber shall be collectively referred to as the “Parties”.

By signing up as a Subscriber, you are agreeing to be bound by this Agreement and are representing that you have read, understood, and consented to the terms herein. You may not sign up as a Subscriber if you do not agree to the terms of this Agreement. The Company reserves the right to decline to allow you to participate as a Subscriber at any time in its sole discretion if it has cause to believe that your participation would violate this Agreement.

1. Services: The Company operates an online portal (the “Portal”) to facilitate the Subscriber’s connection to Content Creators. The Company connects the Subscriber to Content Creators who will create for and provide to the Subscriber video and other content (the “Deliverable(s)”) to be used by the Subscriber for marketing and on certain social media and other websites (the “Services”). On subscribing to the Services, the Subscriber will select a plan to receive a certain number of Deliverables every 30 days (each such 30 days, a “Period”). The Deliverables shall be created each Period by the applicable Content Creator(s). On the Portal, the Subscriber will have the opportunity to describe specific Deliverables, provide feedback, and approve concepts and Deliverables.

2. Term: This Agreement shall commence on your registration as a Subscriber and shall continue on an ongoing basis until terminated by the Parties in accordance with the provisions of this Agreement.

3. Selection of Content Creator: Upon your registration as a Subscriber, you will select one or more Content Creators from the Company’s then-current list of available Content Creators (the “Active Creators”). The Active Creators will remain the Subscriber’s designated, non-exclusive Content Creators unless changed in accordance with the terms of this Agreement. The Subscriber may select new Active Creators in the following circumstances:

a. Every Period during the Term of this Agreement, on fourteen (14) days’ prior written notice; and
b. Where an Active Creator is no longer registered as a Content Creator with the Company.

4. Collaboration with Content Creators: The Subscriber agrees to collaborate with their Active Creator(s) on the creation of Deliverables to the extent necessary to effectuate the terms herein. Subscriber agrees to appoint a representative to collaborate with the Active Creator(s) and further agrees to make said representative reasonably available for consultation in order to ensure the smooth creation of the Deliverable(s) in accordance with the terms herein. Feedback must be provided by the Subscriber within a reasonable time prior to the intended publication of the relevant Deliverable. Subscriber agrees that it shall be fully responsible for any failure on its part to collaborate with the Active Creator(s) and shall not dispute the outcome of the Deliverable(s) where it has not made itself reasonably available for collaboration with the Active Creator(s).

5. Delivery: Each Deliverable shall be considered “delivered” when the Subscriber indicates it as approved for final use in the Portal. However, regardless of whether the Subscriber has approved a specific Deliverable for final use on the Portal, a Deliverable will be deemed final for the purposes of this Agreement if: (i) the Content Creator submits the Deliverable for approval on the Portal after incorporating two (2) rounds of feedback from the Subscriber after first submission of the Deliverable in video format; or (ii) the Content Creator submits the Deliverable (in any format) for approval on the Portal and does not receive further feedback from the Subscriber for [5] business days.

6. Payment: For the Services rendered, the Subscriber agrees to pay to the Company each Period the fees indicated by the Company on subscription for the applicable subscription tier plus applicable taxes (the “Subscription Fees”). The Subscription Fees are due and payable on the first day of each Period in the subscription Term.
‍
7. Relationship of Parties: The Parties understand and affirm that the Company is an independent contractor of the Subscriber, and nothing in this Agreement shall be construed as creating any other legal relationship between the Parties, whether agency, joint venture (or other form of joint enterprise), partnership, franchise, business opportunity, employment, fiduciary or otherwise. Neither Party has the power or authority (and shall not hold itself out as having such power or authority) to act in the name of or bind the other Party and shall not make any representations on the other Party’s behalf without the other Party’s prior written consent.

8. No Guarantee: Unless otherwise stated herein, the Company expressly does not guarantee any specific performance target of the Deliverable(s) including but not limited to engagement targets, impression targets, viewer counts, Subscriber business objectives, Subscriber marketing objectives, or other such metrics, targets or objectives. Subscriber further understands that Company makes no guarantee of the actual real follower count or performance of any Content Creators used in the Deliverable(s).

9. Intellectual Property: The Subscriber hereby grants to the Company a world-wide, limited, royalty-free right and license to use (and to sublicense to its contractors and the Content Creator(s) utilized to fulfill this Agreement the right to use) the Subscriber’s brand, logos, copyrighted material, promotional materials, name, and other such property provided by the Subscriber to the extent reasonably necessary to fulfill the Agreement and deliver the Deliverables.

Other than the intellectual property licensed to the Company from the Subscriber in the foregoing paragraph, the Company shall be the owner of all intellectual property, including but not limited to copyright, in the Deliverable(s) produced pursuant to this Agreement. Subject to the Company receiving full payment for the Services, and provided the Subscriber does not edit, modify, adapt or amend any Deliverables after they are approved for final use pursuant to Section 5, the Company grants to the Subscriber a world-wide, limited, exclusive, royalty-free right and license to use the Deliverable(s) in accordance with the terms and purpose of this Agreement.

For the avoidance of doubt, the Company shall not be liable under or in connection with this Agreement for any edits, modifications, adaptations or amendments to any Deliverables made by Subscriber or by a third party on Subscriber’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverable(s) arises due to the acts or omissions of the Subscriber.

10. Termination: Once the Subscriber has been subscribed for at least ninety (90) consecutive calendar days, this Agreement may be terminated by either Party for any or no reason on at least thirty (30) days’ prior written notice. Either party may terminate this Agreement immediately on written notice for a material breach of this Agreement, including in the case of the Company only the non-payment of Subscription Fees, provided that the breaching party fails to cure such material breach to the non-breaching party’s reasonable satisfaction within fifteen (15) days after receipt of written notice from the non-breaching party describing in reasonable detail the nature and details of such material breach. Payment of the Subscription Fees for the Period in which the termination occurs will not be pro-rated or refunded.

11. Limitation of Liability:

a) In no event shall either Party be liable for any consequential, indirect, incidental, special, exemplary, punitive or aggravated damages, lost profits or revenues or diminution in value arising out of or relating to any breach of this Agreement, whether or not the possibility of such damages has been disclosed by either Party in advance or could have been reasonably foreseen, regardless of the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

b) Except in the case of claims based on willful misconduct, each Party’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence and any claims of injury or death related to Deliverables) or otherwise, in respect of any and all claims will be limited to the amount that is the greater of: (i) the Subscription Fees paid or payable by the Subscriber to the Company in the previous six (6) months, and (ii) five thousand dollars ($5,000).

c) Except as otherwise provided herein, the Company makes no representations or warranties of any kind and specifically disclaims all warranties and conditions, whether express or implied, statutory or collateral, regarding the Services or any Deliverables or other content provided by the Company or any Content Creator to the Subscriber including, but not limited to, any warranty or condition of performance, quality, durability, merchantability, fitness for a particular or general purpose, non-infringement, quiet enjoyment, or accuracy.

d) Without limiting the foregoing, the Subscriber expressly acknowledges that the Deliverable(s) may violate the intellectual property rights of a third party either upon delivery or in the future (e.g., such as but not limited to cases where a music label ceases to allow its music to be used on any given platform such as TikTok). The Subscriber expressly affirms that it is its sole responsibility to determine compliance with the intellectual property rights of third parties in connection with its use of the Deliverable(s).

12. Representations and Warranties: The Subscriber represents and warrants to the Company that: (i) any materials provided to the Company (“Subscriber Materials”) will not, when used in accordance with this Agreement, infringe the intellectual property rights or other rights of any third party; (ii) the Subscriber Materials will comply with all applicable laws, regulations, orders, social media terms of use, codes of practice and rules and are accurate, truthful and complete in all material respects; and (iii) it shall only use the Deliverables for the purpose contemplated herein.

13. Non-Solicitation: The Subscriber agrees that it shall not, during the Term of this Agreement and for a period of one (1) year after its expiration or termination, hire, retain, contract with, or otherwise engage (or attempt to do the aforesaid) the services of the Company’s employees, independent contractors, sub-contractors (including but not limited to Content Creators) or other personnel as the case may be to provide services directly to the Subscriber except with the prior written approval of the Company.

14. Valid Amendment: The Company may, at its sole discretion, alter, limit, suspend or modify this Agreement at any time, without notice or cause. It is your responsibility to check or review this Agreement from time to time to keep informed of any changes. Notwithstanding the foregoing, the Company will notify you of material changes to this Agreement, which changes shall not take effect until thirty (30) days following such notice.

15. Severability: Every provision or part of this Agreement is to be considered severable. If any provision or part of this Agreement (or its application to any person or circumstance) is found by any court of competent jurisdiction to be invalid or unenforceable, that determination shall not impair the other provisions or parts of this Agreement, which will continue to operate in full force and effect as if such invalid or unenforceable provision or part were severed from this Agreement, subject to modifications that are necessary to carry out the terms and intent of this Agreement.

16. Force Majeure: Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent the delay or failure is caused by or results from any act or event beyond the impacted Party’s reasonable control (which events may include natural disasters, pandemics, embargoes, explosions, riots, wars or acts of invasion or terrorism, requirements of law, or national or regional emergency) (each, a “Force Majeure Event”), provided that no Force Majeure Event shall relieve Subscriber of its payment obligations hereunder. The Party whose performance is affected by a Force Majeure Event shall promptly provide a written notice to the other Party, giving details of the Force Majeure Event, its likely duration and the extent to which its obligations are likely to be prevented or delayed. If any Force Majeure Event occurs, the date(s) for performance of any affected obligation(s) shall be postponed up to two (2) months, following which the non-affected Party shall have the right to terminate this Agreement with immediate effect on written notice to the affected Party. Each Party shall use commercially reasonable efforts to minimize the effects of any Force Majeure Event.

17. Governing Law: This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.

18. Choice of Forum: Any legal suit, action, litigation, arbitration or proceeding of any kind whatsoever in any way arising of, from or relating to this Agreement shall be instituted in the courts of the City of Toronto, Ontario, and each Party irrevocable submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding. Each Party agrees that a final judgement in any such suit, action, litigation, arbitration or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgement or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.

19. Notices: All notices, requests, consents, claims, demands, waivers and other communications under this Agreement must be in writing and sent by electronic mail to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given 24 hours following confirmation of email transmission.

Notice to Company: legal@brkaway.co
‍Notice to Content Creator: The email address provided upon registering as a Subscriber.

20. Confidentiality: The Parties acknowledge that in the course of this Agreement they may come into contact with confidential information of the other party pertaining to, among other things, business methods, software and technological tools, Subscriber lists, personal information, or otherwise, and both Parties agree to protect and keep confidential such confidential information and disclose it only as necessary to comply with this Agreement or with another law compelling disclosure. The Parties agree that upon expiration or termination of this Agreement, they shall destroy, return and/or delete all such confidential information. The Subscriber also acknowledges that the Company engages independent sub-contractors (including but not limited to Content Creators) to facilitate the performance of the Services. The Company shall ensure that any such sub-contractors are subject to confidentiality obligations at least as stringent as those in this Section. However, the Parties agree that the Company shall not be responsible or liable for the acts or omissions, including acts, omissions or disclosures by the Subscriber or any Content Creator, over which it has no reasonable control.

21. No Waiver: No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

22. Entire Agreement: This Agreement constitutes the sole and entire agreement between the Company and the Subscriber with respect to the subject matter contained herein and supersedes all prior and contemporaneous agreements, understandings, representations, warranties and discussions, written or otherwise, regarding such subject matter.

23. Survival: All obligations under this Agreement which expressly or by their nature survive the expiration, termination or assignment of this Agreement shall continue in full force and effect subsequent to and notwithstanding such expiration, termination or assignment and until they are satisfied or by their nature expire. The expiration, termination or assignment of this Agreement for whatever reason shall not prejudice or affect the rights of either Party against the other in respect of any breach of this Agreement or any monies payable by one Party to the other in relation to any period prior to the effective date of expiration, termination or assignment. Without limiting the generality of the foregoing, all payment obligations in respect of monies payable by one Party to the other shall survive expiration, termination or assignment of this Agreement.

24. Successors and Assigns: Neither Party may assign or transfer any of its rights or obligations under this Agreement at any time without the prior written consent of the other Party, which consent may not be unreasonably withheld. Notwithstanding the foregoing, a Party may assign or transfer this Agreement without the consent of the other Party provided that such assignment or transfer is to a successor in interest by reason of merger, acquisition or amalgamation, and provided the transferee or assignee assumes all obligations of the transferring or assigning Party under this Agreement. Any purported assignment or transfer in violation of this Section shall be null and void.

25. Further Assurances: Each Party shall, at its expense, do, execute and deliver, or cause to be done, executed and delivered, such further acts and documents as the other Party may reasonably request from time to time for the purpose of giving effect to this Agreement or carrying out the intention or facilitating the performance of the terms of this Agreement.