Brkaway Content Creator Terms of Service
Terms of Service – Content Creators
These Terms of Service (the “Agreement”) between you (the “Content Creator”, “your”, “you”, etc.) and Brkaway Media Inc. (the “Company”, “our”, “we”, etc.) govern all aspects of your engagement by the Company as a Content Creator for the Company’s subscribers (each, a “Brand”). The Company and the Content Creator shall be collectively referred to as the “Parties”.
If you are an individual, to be eligible to register as a Content Creator, you must have reached the age of majority in your jurisdiction of residence. By registering as a Content Creator, 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 register as a Content Creator if you do not agree to the terms of this Agreement or do not meet the eligibility requirements. The Company reserves the right to decline to allow you to participate as a Content Creator at any time in its sole discretion if it has cause to believe that you do not meet the eligibility requirements or if your participation would violate this Agreement.
1. Services: The Content Creator shall create and deliver video and other content (the “Deliverable(s)”) to be used by the Company and the Brands for marketing and on certain social media and other websites (the “Services”). The Services shall be performed on a project basis for one or more Brands from time to time as offered by the Company on the Company’s online portal (the “Portal”). Upon being offered a project (each such project offering, an “Opportunity”), the Content Creator may review and accept or decline the Opportunity. An Opportunity will be further described in the Portal, including specific Deliverables, timelines and payment. Upon acceptance by the Content Creator, the Opportunity details shall become a part of this Agreement and will be incorporated herein by reference. If any term in an Opportunity conflicts or is inconsistent with the terms of this Agreement, the Opportunity will control.
2. Term: This Agreement shall commence on your registration as a Content Creator and shall continue on an ongoing basis until terminated by the Parties in accordance with the provisions of this Agreement.
3. Collaboration: In order to carry out any Opportunity, the Content Creator shall collaborate with the Company and the applicable Brand in order to effectively create the Deliverable(s) in the Opportunity. The Content Creator agrees to follow all guidance and direction from the Company and Brand with regards to the Deliverable(s) and agrees that the Company shall have final authority and editorial control on all matters, including but not limited to creative matters, relating to the Content Creator’s Deliverable(s) under the Opportunity.
4. Delivery and Feedback: Each Deliverable in an Opportunity shall be considered “delivered” when it is indicated as approved for final use by the applicable Brand in the Portal. The Content Creator must incorporate all feedback provided by the Brand in the Portal prior to final submission. However, regardless of whether the Brand has approved a specific Deliverable for final use on the Portal, a Deliverable will be deemed final for the purposes of the Opportunity if: (i) the Content Creator submits the Deliverable for approval on the Portal after incorporating three (3) rounds of feedback from the Brand 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 Brand for five (5) business days.
5. Payment: Provided the Content Creator has successfully delivered all Deliverables for a given Opportunity in accordance with Section 4 above, the Company shall pay to the Content Creator the fees indicated in the applicable Opportunity, plus any applicable taxes (the “Project Fees”). Project Fees shall be due and payable within thirty (30) calendar days following the Company’s receipt of the Content Creator’s invoice for the applicable Opportunity.
6. Relationship of the Parties: The Parties understand and affirm that the Content Creator is an independent contractor of the Company, 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. The Content Creator shall have no power or authority (and shall not hold itself as having such power or authority) to act in the name of or bind the Company and shall not make any representations on the Company’s behalf without the Company’s prior written consent.
7. Representations and Warranties: Content Creator represents and warrants that: (i) it has the capacity, requisite skills and ability to enter into this Agreement and perform the Services; (ii) its performance of the Services does not and will not violate a third-party contract or violate or infringe the intellectual property rights of any third-party; (iii) it shall comply with all applicable laws, regulations, orders, social media terms of use, codes of practice and rules in its fulfillment of this Agreement and production of the Deliverable(s); and (iv) any information it has submitted to the Company, including but not limited to its social media account’s technical and advertising information (including but not limited to engagement metrics and follower counts) is truthful and accurate.
8. No Guarantee: Content Creator understands and affirms that the Company expressly does not guarantee any specific volume of work (for present or future work) for the Content Creator pursuant to this Agreement.
9. Rights: The Content Creator hereby grants to the Company a world-wide, unlimited, non-exclusive, royalty-free and sublicensable license to use the Content Creator’s likeness, image, brand, name, and other such property as is necessary to fulfill the Agreement for the purpose of facilitating the production of the Deliverable(s) and for fulfilling the Company’s business purposes, howsoever construed in the sole discretion of the Company.
10. Intellectual Property: The Content Creator hereby assigns and shall assign to the Company any and all intellectual property rights, whether copyright or otherwise, in all Deliverables or other content or materials as may be produced by the Content Creator pursuant to this Agreement and recognizes that Company shall be the absolute owner of all such intellectual property. The Content Creator hereby waives any and all moral and author’s rights in all Deliverables or other content created pursuant to this Agreement. If the Content Creator is a corporation or other legal entity, the Content Creator shall obtain the foregoing waivers from all individuals who have worked on the applicable Deliverable(s).
11. Termination: This Agreement may be terminated immediately by the Company for any or no reason upon notifying the Content Creator. This Agreement may also be terminated by the Content Creator for any or no reason with at least two weeks’ notice in writing to the Company, provided all active Opportunities have been completed prior to effective termination. If any Opportunities remain incomplete at the time of effective termination, the Parties agree that due to the challenge of calculating and apportioning payment for such undelivered partial services as may have then been undertaken by the Content Creator up to the point of termination, the Content Creator shall forfeit all claim to any amount, compensation, or recompense of any kind for said undelivered partial services rendered notwithstanding the work and effort it may have already undertaken under this Agreement.
12. Limitation of Liability:
a) The aggregate liability of the Company to the Content Creator, regardless of the theory of liability, for any claim, breach or default under this Agreement, will be limited to proven direct damages incurred and will in no event exceed the Project Fees paid or payable by the Company to the Content Creator in the previous three (3) months.
b)In no event shall the Company be liable to the Content Creator 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 to the Company 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.
13. Indemnification: The Content Creator shall indemnify, hold harmless and defend the Company and its parent and their respective officers, directors, partners, shareholders, members, employees, agents, affiliates, successors and permitted assigns (collectively, “Company Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including legal fees (on a full indemnity basis), disbursements and charges, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), incurred by any Company Indemnified Party arising out of, relating to or occurring in connection with:
a) any breach of this Agreement by the Content Creator, including a breach of any of the representations or warranties in Section 7;
b) any failure by the Content Creator to comply with any applicable laws;
c) any failure by the Content Creator to comply with any applicable social media terms of use.
14. Non-Solicitation: Content Creator agrees that it shall not, during the Term of this Agreement and for a period of six (6) months after its expiration or termination, solicit, contract with, or otherwise engage (or attempt to do the aforesaid) any Brand for which it has created a Deliverable pursuant to this Agreement to provide services directly to such Brand except with the prior written approval of the Company.
15. 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.
16. 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.
17. Governing Law and Forum: 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. 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 judgment in any such suit, action, litigation, arbitration or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment 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.
18. 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 registration as a Content Creator
19. Confidentiality:The Content Creator acknowledges that in the course of this Agreement it may come into contact with confidential information of the Company or a Brand pertaining to, among other things, business methods, client lists, client social media account login information, personal information, or otherwise, and the Content Creator agrees to protect and keep confidential such confidential information and disclose it only as necessary to fulfill and comply with this Agreement or with another law compelling disclosure. Upon expiration or termination of this Agreement, the Content Creator shall destroy, return and/or delete all such confidential information.
20.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.
21. Entire Agreement: This Agreement, including and together with any Opportunity documents and any related exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement between the Company and the Content Creator 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.
22. Survival: All obligations under this Agreement, including obligations of indemnity, 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.
23. Successors and Assigns: The Content Creator may not assign or transfer any of its rights or obligations under this Agreement at any time without the prior written consent of the Company. The Company may assign or transfer this Agreement without the consent of the Content Creator, provided the transferee or assignee assumes all remaining obligations of the Company under this Agreement. Any purported assignment or transfer in violation of this Section shall be null and void.
24. 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.
