Brkaway Terms of Service
Last Update: June 26, 2023
These Terms of Service (the “Agreement”) between you (the “User”, “your”, “you”, etc.) and Brkaway Media Inc. (the “Company”, “our”, “we”, etc.) govern all aspects of your relationship with the Company. You and the Company will be collectively referred to as the “Parties”. If you are an individual using the Platform (defined below) to promote your content creation services or engage with third parties to provide such content creation services, you will be referred to as a “Content Creator”. If you are an individual or entity using the Platform to engage Content Creators to promote your brand, business, products or services, you will be referred to as a “Brand”. Content Creators and Brands who have subscribed to the Platform will be collectively referred to as “Subscribers”.
If you are an individual, to use the Services (defined below), you must have reached the age of majority in your jurisdiction of residence. By accessing the Platform or using or subscribing to the Services, or by any other indication of acceptance, 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 use or subscribe to the Services 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 (i) your participation would violate this Agreement or (ii) you do not meet any applicable eligibility requirements.
1. Services. The Company operates an online platform (the “Platform”) to facilitate the communication and collaboration between Brands and Content Creators and through which: (a) Brands can (i) request video and other content to be used by the Brand for marketing and on certain social media and other websites (each such piece of content, a “Deliverable”) from a Content Creator and (ii) invite unsubscribed content creators to use the Platform; (b) Content Creators can (i) create, manage and publicly share a portfolio of content to promote their content creation services (a “Creator Profile”), (ii) accept or decline a Brand’s request to provide one or more Deliverables, and (iii) manually input details regarding Deliverables for brands not using the Platform (each such acceptance or manual entry of a Deliverable project with a brand, a “Collab”); and (c) Brands and Content Creators can access a cloud-based project management tool to plan, schedule, deliver, approve and otherwise manage their Collabs and Deliverables and other aspects of the relationship between Brands and Content Creators (subsections (a) through (c), together with the Platform, are collectively referred to as the “Services”). The Services expressly exclude establishing, negotiating or preparing the terms of engagement between a Content Creator and a Brand as well as the creation of the Deliverables: the Services are a collaboration tool and not a contracting tool. For the avoidance of doubt, Content Creator and Brand will be solely responsible for establishing, negotiating and preparing the contractual terms governing each Collab, including the nature and content of the Deliverables, the delivery schedule for the Deliverables, payment for the Deliverables, termination rights with respect to the Collab, and use and ownership of the Deliverables. Furthermore, the Content Creator and Brand will be solely responsible for the creation, approval and ultimate use of the Deliverables.
2. Subscriptions. On subscribing to the Services, the Subscriber will select a plan to “manage” a certain number of Deliverables every month using the Platform. A Deliverable is considered to be “managed” once it is “created” for management in the Platform, whether by confirmation of a Collab opportunity between a Brand and Content Creator or by manual creation by a Content Creator. Subscription tiers may vary based on type of Subscriber and the number of Deliverables managed through the Platform each month, regardless of the total number of Collabs on which the Subscriber is engaged. Notwithstanding the foregoing, Users may use the Platform to view Creator Profiles without a subscription by accessing a link to the Creator Profile shared by the Creator. Users without a subscription are subject to this Agreement at all times while using the Platform.
3. Payment. For a paid subscription, the Subscriber agrees to pay to the Company each month or such other interval of time as selected by the Subscriber (the “Billing Interval”) 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 Billing Interval in the subscription Term.
5. Ownership of and License to the Platform.
a. Neither this Agreement nor your use of the Services grants you ownership in the Platform. This Agreement does not grant you any right to use the Company’s trademarks, graphics, logos and other commercial symbols or brand elements. All right, title and interest, including intellectual property rights, in and to the Platform, including any updates, adaptations, translations, customizations or derivative works thereof, will remain the sole property of the Company (or our third-party suppliers, if applicable). Subject to this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable and revocable license and right to use the Platform. The Platform and all materials provided by us hereunder are made available or licensed and not “sold” to you. All rights not expressly granted to you in this Agreement are reserved by the Company.
b. Certain elements of the Platform are protected by copyright. You are prohibited from modifying, copying, reproducing, publishing, posting, transmitting, distributing, creating derivative works from, decompiling, transferring or selling the Platform or any portion thereof or sharing or granting access in any of the foregoing to any third party for any purpose (except for posting links to your Creator Profile as described above). Any use of third-party software provided in connection with the Platform will be governed by such third parties’ licenses and not by this Agreement.
c. The name “BRKAWAY” is the trademark and trade name of the Company. Any trademarks, graphics, logos or other commercial symbols appearing in or on the Platform are the exclusive property of the Company or its third-party suppliers and may not be used in any manner without our express written consent.
a. THE LAWS OF CERTAIN JURISDICTIONS, WHICH MAY INCLUDE QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS IN THIS AGREEMENT (INCLUDING THE FOLLOWING DISCLAIMERS) MAY NOT APPLY, AND YOU MAY HAVE ADDITIONAL RIGHTS. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR CONDITION, THE SCOPE AND DURATION OF SUCH WARRANTY OR CONDITION WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND. EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED OR AS OTHERWISE REQUIRED BY LAW, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, DURABILITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, CURRENCY, TIMELINESS, INTEGRATION, FITNESS FOR A PARTICULAR OR GENERAL PURPOSE AND NON-INFRINGEMENT, AND/OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, AND/OR THAT THE SERVICES ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SECURITY OF DATA TRANSMITTED OVER THE INTERNET OR PUBLIC NETWORKS IN CONNECTION WITH YOUR USE OF THE PLATFORM, THIRD PARTY COMMUNICATIONS AND ANY THIRD-PARTY WEBSITES OR CONTENT DIRECTLY OR INDIRECTLY ACCESSED THROUGH THE PLATFORM.
b. Without limiting the foregoing: (i) Content Creator understands and affirms that the Company expressly does not guarantee any specific volume of work (for present or future work), income or payment for or to the Content Creator pursuant to this Agreement; and (ii) Brand understands and affirms the Company expressly does not guarantee (A) any specific performance target of the Deliverable(s) including but not limited to engagement or impression targets, viewer counts, business objectives, marketing objectives, or other such metrics, targets or objectives; (B) the truthfulness or accuracy of a Creator Profile; or (C) the skills, characteristics, attributes or performance of any Content Creators used in the Deliverable(s).
8. Subscriber Licenses.
a. 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, social media handles and other such property as is necessary to fulfill the Agreement for the purpose of providing the Services and for fulfilling the Company’s business purposes, howsoever construed in the sole discretion of the Company.
b. The Subscriber hereby grants to the Company a world-wide, limited, royalty-free right and license to use (and to sublicense to its contractors 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 Brand to the extent reasonably necessary to fulfill the Agreement and provide the Services.
9. Termination. Company may terminate this Agreement with immediate effect upon written notice to you at any time and for any reason in our sole discretion. You may terminate this Agreement at any time by cancelling this Agreement through the Platform. Termination of this Agreement by a Subscriber will be effective at the end of the then-current Billing Interval. For the avoidance of doubt: (a) payment of the Subscription Fees for the Billing Interval in which the termination occurs will not be pro-rated or refunded; and (b) if a Subscriber terminates this Agreement during a Billing Interval, Subscriber will retain access to the Platform and the Services until the end of the Billing Interval in which notice of termination was provided.
10. 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. 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. The limitations on liability in this Section 12 does not apply to claims based on willful misconduct or Subsections 11(b), 11(c) or 11(d) of this Agreement.
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 creation or use of the Deliverable(s).
11. Indemnification. You will defend, indemnify and hold harmless the Company and its officers, directors, shareholders, employees, contractors, agents, licensors, licensees and services providers and any successors and assigns of the foregoing, from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including reasonable legal and accounting fees, arising out of or in connection with: (a) your breach of any provision of this Agreement, except for breaches of Section 5 or 6; (b) your breach of Section 5 or 6 of this Agreement; (c) your violation of any law or the rights of a third party (including intellectual property rights); (d) any viruses, Trojan horses, worms, time bombs, spyware, malware, cancelbots or other similar harmful or deleterious programming routines input by you into the Platform; or (e) your use of the Services. The Company reserves the right, at its own cost, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defences. You agree that the provisions in this section will survive any termination of this Agreement.
12. 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.
13. 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.
14. 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 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.
15. 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:email@example.com
Notice to Subscriber:The email address provided upon registration as a Subscriber
16. 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. However, the Parties acknowledge and agree that the Company has no reasonable control over or knowledge of any information that passes between Brands and their Content Creators pursuant to Projects (or contractual terms related thereto) and shall not be responsible or liable for acts, omissions or disclosures regarding confidential information as between Subscribers.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.