Last Updated: September 13th, 2019
This services agreement (“Agreement”) is entered into by and between Primped Beauty Technologies Inc. and its affiliated companies (“Primped”), and you on your own behalf, or on behalf of the entity on whose behalf you may act, as an independent beauty, health and wellness professional (“Primped Provider”).
This Agreement shall be effective on the date that Primped Provider completes the Registration Forms (as defined below) set out on the Service and Primped accepts such Registration Forms by indicating same in writing via email (the “Effective Date”).
By clicking “I Agree” and submitting your Registration Forms or by otherwise using the Service (as defined below), you agree to accept and abide by this Agreement, being effective as of the Effective Date.
Please read this Agreement carefully before the Registration for or use of the Service. In light of COVID-19, Primped Providers will also be required to acknowledge, agree, and sign off on additional safety policies circulated by Primped. This Agreement includes the Registration Form and any policies or guidelines of Primped, and governs the terms pursuant to which Primped Provider may use, and Primped will provide access to, the Service.
1 DEFINITIONS; PRINCIPLES OF INTERPRETATION
In addition to the words and phrases defined within this Agreement, the following capitalized words and phrases shall have the following meanings:
- “Account” has the meaning set out in Section 3.
- “Absolute Service Failure” means circumstances where Primped Provider: (i) cancels a Confirmed Appointment within four (4) hours of the scheduled time for such Confirmed Appointment; (ii) is more than 60 minutes late for a Confirmed Appointment; or (iii) does not attend a Confirmed Appointment.
- “Business Day” means a day other than a Saturday, Sunday or bank or other public holiday in Toronto, Canada.
- “Community Guidelines” means the Primped guidelines attached hereto as Schedule A.
- “Confidential Information” means any and all information relating to or disclosed in the course of this Agreement, which is or should be reasonably understood to be confidential or proprietary to the disclosing party, including the Service. Confidential Information does not include any information that the receiving party can demonstrate: (i) was publicly available at the time of disclosure to it; (ii) was published or otherwise became publicly available after disclosure to the receiving party, through no fault of its own; (iii) was in the possession of the receiving party at the time of disclosure to it from a third party who had a lawful right to such information and disclosed such information to it, without a breach of a duty owed to the disclosing party; or (iv) was independently developed by the receiving party without reference to Confidential Information of the disclosing party, as proven by dated written records. Confidential Information excludes Primped Provider Data and Primped Provider Content.
- “Confirmed Appointment” means a Request which has been accepted or otherwise approved by Primped Provider and for which Primped has provided a Confirmation Notice to Primped Provider.
- “Content” means all informational text, data, software documentation, photographs, graphics, audio, video, graphics, messages, files, documents, images, or other materials, whether publicly posted or privately transmitted as well as all derivative works thereof.
- “HST” means the tax imposed under Part IX of the Excise Tax Act (Canada).
- “Intellectual Property Rights” means all worldwide intellectual property rights arising under statutory or common law or by contract, now existing or hereafter filed, issued, or acquired, including all: (i) patent rights and rights under patent applications; (ii) rights associated with works of authorship including copyrights and moral rights, and any applications therefor; (iii) rights relating to the protection of trade secrets; (iv) rights in trademarks, service marks, logos, trade dress, trade names, and design patent rights, and any applications therefor, and (v) any right analogous or related to the foregoing and any other proprietary rights relating to intangible property.
- “Protected Entity” means: (i) any other Primped Provider engaged by Primped, any employee or other business contact with whom Primped has a contractual relationship or has otherwise engaged in connection with its business operations; (ii) any Primped Member that Primped Provider had direct business dealings with or was introduced to in connection with the Service.
- “Personal Information” means information about any identifiable individual, but excludes business contact information.
- “Primped Provider Content” means Content, which Primped Provider submits, posts, stores, displays, uploads or transmits on or through the Service.
- “Primped Provider Data” means electronic data of Primped Provider loaded or inputted into the Service by or on behalf of Primped Provider.
- “Primped Member” means users of the Service other than Primped Provider.
- “Provider Fee” has the meaning set out in Section 8.1(ii)
- “Referral Fee” has the meaning set out in Section 8.1(i).
- “Registration” means the application process (pursuant to a Registration Form) by which Primped Provider obtains approval from Primped to use the Service.
- “Registration Forms” means the Account creation and registration document: (i) provided by Primped through the Service, and completed by Primped Provider and accepted by Primped; or (ii) another registration document signed by Primped Provider and Primped, in each case prior to Primped Provider’s initial login into the Service, representing Primped Provider’s registration to use the Service and which is subject to and incorporated into this Agreement.
- “Request” means a request for a Treatment made by a Primped Member via the Service.
- “Sales Taxes” means all applicable value-added, sales, use, consumption, multi-staged, personal property, customs, excise, stamp, transfer or similar taxes, duties or charges, including all applicable HST;
- “Service” means the Primped online platform and referral solution as made available by Primped via primped.ca, the Primped mobile applications and the related Primped web applications, which allow Primped Provider to manage the booking of Treatments, pricing, requests, and Primped Member contact information, and all fixes, upgrades, updates, versions and releases of same to extent made available to Primped Provider during any Term.
- “Service Failure” means circumstances where Primped Provider: (i) fails to perform a Treatment as specified in the parameters of a Confirmation Notice; or (ii) is more than 20 minutes late for a Confirmed Appointment.
- “Service Fee” means Primped Provider services charges that are pre-approved and posted to the Service by Primped, and charged to Primped Members in respect of any completed Treatments.
- “Term” means the duration for which Primped Provider may use the Service as set forth in Section 9.1.
- “Treatments” means list of service offerings of Primped Provider described on the Service and that a Primped Member may request using the Service.
- “Virus” means any virus, trojan horse or computer software code, time bombs, harmful or malicious data, or other undocumented programs routines or devices designed or reasonably likely to disable, damage, impair, erase, deactivate, or electronically repossess software or data.
2 ACCESS TO PRIMPED PLATFORM
2.1 Primped Services
Primped will make the Service available during the Term to Primped Provider for its internal business operations pursuant to the terms of this Agreement and as such Primped Provider may, subject to the terms of this Agreement:
- access and use the Service in accordance with the licence set out in section 2.2;
- make available, through the Service, Primped Provider’s Treatments; and
- receive the agreed upon Provider Fee for each completed Treatment.
Subject to the terms and conditions of this Agreement, Primped grants Primped Provider a limited, non-assignable, non-sublicensable, and non-exclusive right during the Term for Primped Provider to access and use the Service for the sole purpose of accessing and enjoying the benefit of the Service, in the manner permitted by this Agreement and as made available by Primped, and not for resale.
2.3 Account Limitations
Unless otherwise agreed between the Parties in writing, the Service may only be accessed by Primped Provider in accordance with its Account and this Agreement. Primped Provider shall be solely responsible for ensuring that its collection, use and disclosure of all Primped Provider Data and Primped Content, including with respect to Personal Information, and any other data regarding Primped Provider’s use of the Service, is in compliance with applicable laws.
In connection with the Service, Primped Provider will have online access to software from Primped, the use of which shall be governed by this Agreement. Primped reserves all other rights to all such software. Primped Provider’s license to use such software shall immediately terminate upon the termination of this Agreement.
2.5 Non-Primped Networks
Primped Provider acknowledges and agrees that: (a) Primped Provider’s electronic communications will involve transmission over the networks which are not owned and/or operated by Primped, including the Internet (the “Non-Primped Networks”); (b) electronic communications may be accessed by unauthorized parties when communicated across the Non-Primped Networks; and (c) Primped is not responsible for any electronic communications, Primped Provider Content, and/or Primped Provider Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across the Non-Primped Networks.
2.6 Technical Requirements
In order to access and use the Service, Primped Provider must ensure it has access to an Internet connection and has access to a device with a modern standards-compliant web browser.
In addition to its other rights under this Agreement, Primped may at its sole discretion suspend or terminate Primped Provider’s access to the Service without notice to and for any reason, including to: (a) prevent damage to or degradation of the Service; (b) address or investigate any Primped Member complaints; (c) address or investigate any violation of this Agreement by Primped Provider; (d) comply with any applicable law, court order, or other governmental request or order; or (e) respond to any non-payment or disputes in connection with any fees payable hereunder.
3. THE SERVICE AUTHORIZED ACCOUNTS
Primped Provider shall access and manage its profile as a Primped Provider on the Service by means of a provider user account which will be assigned to the Primped Provider by Primped (“Account”). For clarity, the foregoing Account excludes any use of the Service by the Primped Provider to book Treatments, for which the Primped Provider may do so by creating a separate Primped Member account. Primped Provider is responsible for all activity occurring under such Account, including all Treatments provided to Primped Members, and shall abide by all applicable local, provincial/state, national and foreign laws in connection with Primped Provider’s use of the Service and provision of Treatments, including those related to data privacy, international communications and the transmission of technical or Personal Information. Primped Provider shall ensure that it assigns appropriate passwords to its Account and shall keep such passwords secure. Primped Provider shall: (a) notify Primped immediately of any unauthorized use of any password or Account or any other known or suspected breach of security; and (b) not impersonate another person or provide false identity information to gain access to or use the Service. Without limitation, Primped may immediately remove or suspend any Account affected by the activities described in the foregoing paragraphs (a) or (b).
4.1 Primped Provider will not do or attempt to do any of the following:
- access or use, or permit any third party to access or use, the Service, except as expressly permitted by this Agreement;
- copy, frame or mirror any part or Content of the Service including the look and feel of the Service or any part thereof, or any ideas, features, functions or graphics of the Service;
- copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile or access for a purpose that is competitive to the Service, the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any manner or form, or sell, resell, rent or lease the Service or otherwise commercially exploit any part of the Service or make any part of the Service available to a third party, including as a service bureau;
- use the Service, including images or other assets generated by the Service, to assist Primped Provider or any third party with the purchase of material from, or the use of services provided by, any person other than Primped;
- use the Service (a) to store or transmit materials which are infringing, libelous, or otherwise unlawful or tortious; offensive; or in violation of third-party privacy rights, or (b) otherwise in violation of the Community Guidelines or this Agreement;
- store or transmit Viruses through the Service;
- interfere with or disrupt the integrity or performance of the Service;
- attempt to gain unauthorized access to the Service or its related systems or networks; or
- use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service.
5. SECURITY AND SUPPORT
5.1 Security Measures
Primped shall use commercially reasonable and appropriate administrative, physical and technical safeguards to protect against the unauthorized access, use, or disclosure of Primped Provider Data.
Primped will provide Primped Provider with reasonable customer support regarding Primped Providers use of the Services. Primped may, but is not obligated to, provide Primped Provider with additional support beyond such customer support. Primped Provider may contact Primped at firstname.lastname@example.org for more information or specific requests for additional support.
6. OWNERSHIP AND INTELLECTUAL PROPERTY
- Primped Provider acknowledges that, as between Primped Provider and Primped, the entire right, title and interest, including any and all ownership rights and Intellectual Property Rights, in and to the Service, all software, systems and processes used in the delivery of the Service, in each case including any derivative, enhancement or modification thereof, and all of the foregoing, are the exclusive property of Primped.
- Primped Provider acknowledges and agrees that all information concerning or relating to Primped Members, including without limitation, contact information and any charts and records (including those in electronic format) maintained through the Service by Primped Provider will remain the property of Primped or the Primped Member, as applicable.
6.2 Primped Provider Content
- Primped acknowledges that Primped Provider retains all Intellectual Property Rights Primped Provider already holds in Primped Provider Content.
- During the Term, Primped Provider hereby gives Primped a limited, worldwide, royalty-free, non-transferable (other than in connection with the assignment of this Agreement), non-sublicensable and non-exclusive license for Primped (and on behalf of Primped, its subcontractors), to use, reproduce, adapt, modify, translate, publish, perform, display and distribute Primped Provider Content, solely for the purpose of enabling Primped to provide the Service.
- Subject to the requirements of this Agreement, Primped Provider acknowledges and agrees that Primped, in performing the required technical steps to provide the Service, may: (a) transmit or distribute Primped Provider Content over various public networks in various media; and (b) make such modifications to Primped Provider Content as are necessary to conform or adapt Primped Provider Content to the technical requirements of connecting networks, devices, services or media.
- Primped Provider acknowledges and agrees that Primped Provider shall (a) ensure that Primped Provider Content (including Primped Provider’s storage or transmission of such Primped Provider Content) complies with the terms of this Agreement and any and all applicable laws; (b) promptly handle and resolve any claims relating to Primped Provider Content, including any notice sent to Primped Provider claiming that any Primped Provider Content violates any person’s rights; (c) maintain appropriate backup copies of Primped Provider Content; (d) immediately notify Primped of any unauthorized access, use or disclosure of any Account that comes to Primped Provider’s attention; and (e) provide Primped with such reasonable cooperation and assistance related to any investigation and remediation of such unauthorized access, use or disclosure as Primped may reasonably request.
- Primped Provider is solely responsible for determining whether to make available any Primped Provider Content or Primped Provider Data through the Service or otherwise, and Primped Provider shall indemnify, defend, and hold harmless Primped from any third-party claim arising or in connection with making available such Primped Provider Content or Primped Provider Data through the Service or otherwise.
- Primped Provider represents and warrants that Primped Provider owns or has the necessary licences, rights, consents, and permissions to make available any Primped Provider Content or Primped Provider Data.
- By using and accessing the Service, Primped Provider understands and consents to the storage and processing of Primped Provider Content and Primped Provider Data in Canada or the United States.
6.3 Primped Provider Data
- Primped acknowledges that Primped Provider, vis-à-vis Primped, shall own all right, title and interest in and to Primped Provider Data.
- During the Term, Primped Provider hereby grants Primped a limited, worldwide, royalty-free, non-transferable (other than in connection with the assignment of this Agreement), non-sublicensable and non-exclusive license for Primped (and on behalf of Primped, its subcontractors, to use and copy Primped Provider Data solely for the purpose of enabling Primped to provide the Service.
- Primped Provider also acknowledges and agrees that Primped may freely use Primped Provider Data and Primped Provider Content (for greater certainty, excluding any Personal Information) on a generic, aggregate basis along with Primped’s use of similar data from all of its customers, such that there is no way to identify any data as that of Primped Provider (the “Aggregated Data”), (a) to improve and analyze the performance of the Service including optimizing the Service by improving performance and usability; (b) to develop marketing and sales collateral; and (c) for general industry analysis. Except as otherwise stated in this Agreement, Primped will not modify, disclose or access Primped Provider Data except as required by law. For greater certainty, any Primped Provider Data which is not aggregated to become Aggregated Data shall continue to be subject to Primped’s confidentiality obligations under this Agreement.
- Primped Provider acknowledges and agrees that: (a) Primped Provider is solely responsible for managing, editing, uploading and updating Primped Provider Data onto the Service, and for ensuring that Primped Provider Data is accurate, timely and complete; and (b) without limitation, Primped may immediately (1) delete any Primped Provider Data, or part thereof, that is in breach of any of the representations and warranties set out in Section 12.1; or (2) remove or suspend any Account that is responsible for a breach of this Agreement, in each case without incurring any liability whatsoever to Primped Provider, any Primped Member, or any other person.
- Primped Provider acknowledges and agrees that that to the extent that any Primped Provider Data is processed outside of Canada, it is subject to the laws of the country in which it is held, and may be subject to disclosure to the governments, courts or law enforcement or regulatory agencies of such other country, pursuant to the laws of such country.
All Primped trademarks, trade names, logos and notices present on the Service will be preserved and not deliberately defaced, damaged, or modified or obliterated. Neither party shall use any trademarks, trade names, logos and notices of the other party without the express prior written authorization of such other party, provided, however, that Primped Provider agrees that Primped may include Primped Provider’s name and other indicia in its lists of customers of Primped and in promotional and marketing materials.
- Primped Provider may notify Primped of any feedback or suggestions from Primped Provider or Primped Member relating to the Service, including any suggestions for modifications or enhancements to the Service (“Feedback”).
- Primped Provider hereby agrees to not assert any ownership right of any kind in such Feedback (including copyright, trade-mark, patent, trade secret, unfair competition, moral rights, or implied contract) and waives such moral rights in favour of Primped and its affiliates, licensees, successors and assignees. Primped Provider also acknowledges that it has no right to receive any financial or other consideration in connection with such Feedback.
7. PRIMPED PROVIDER SERVICES, TREATMENTS AND REQUESTS
7.1 Provision of Services
- In consideration for the Service, Primped Provider agrees to:
- perform the Treatments set out as being part of its service offerings on the Service in accordance with best industry practices and applicable law;
- maintain a professional appearance consistent with best industry practices in the applicable profession;
- pay to Primped the Referral Fee as set out in Section 8.1(i);
- in good faith, honour all Confirmed Appointments, in accordance with Section 7.4;
- prepare as necessary in accordance with this Agreement and leave the location of any Confirmed Apportionment in a clean and reasonably acceptable state; and
- co-operate with Primped to rectify any Primped Member complaints.
- Primped Provider shall respond to all Requests by either accepting a proposed time, or rejecting such Requests in accordance with this Section 7.2(i). If Primped Provider receives notice of a Request between: (a) 8 am and 8 pm, Primped Provider shall be required to respond to such Request within three 3 hours of receiving notice of same; (b) 8 pm and midnight, Primped Provider shall be required to respond to such Request within 3 hours from 8 am the next day; or (c) midnight and 8 am, Primped Provider shall be required to respond to such Request within 3 hours from 8 am the same day. Primped Provider acknowledges that Primped may, at its sole discretion, suspend or terminate Primped Provider’s access to the Service where Primped Provider repeatedly does not accept or respond to Requests or repeatedly cancels Confirmed Appointments. In addition, Primped may refuse or reject any Request for any reason, including: (1) if Primped Provider has not met the conditions or otherwise complied with any Registration requirements or this Agreements; (2) if the Treatments in the Request are not available; or (3) for pricing or other errors posted to the Service.
7.3 Primped Provider Availability
- Primped Provider possesses the control and flexibility to set its own flexible hours of availability. Primped Providers must provide Primped with their set availability for providing Treatments. Primped Provider shall be responsible for updating the Service with their availability within their Account.. Primped Provider shall have no obligation to commit to any minimum hours of availability and it shall be in Primped Provider’s sole discretion to determine their availability. Upon Primped Provider posting their availability to the Service, Primped Provider agrees to, in good faith, honour such availability to Primped Members provided, Primped Providers shall have the right to reasonably reject Requests.
7.4 Confirmed Appointments
- Upon Primped Provider accepting a Request, Primped will receive a confirmation notice (“Confirmation Notice”) setting forth the estimated parameters of the Confirmed Appointment, including, among other things, the details of the Confirmed Appointment, the location and time of the Confirmed Appointment, the Service Fee to be paid, applicable Sales Taxes, and any other Primped Member requests. In the event any term contained in the Confirmation Notice is inconsistent with Primped Provider’s understanding of the Confirmed Appointment, Primped Provider must immediately contact Primped to clarify the Confirmed Appointment parameters before beginning performance of the applicable Treatment, otherwise Primped Provider shall be obligated to perform the applicable Treatment as specified in the Confirmation Notice (unless waived, canceled, or superseded by another Confirmation Notice issued by Primped) and to the extent any Sales Taxes are not charged in error, such Sales Taxes shall be deemed included in the Service Fee.
7.5 Pre-Treatment Requirements
- In the event Primped Provider is unable or anticipates it will be unable to perform Confirmed Appointment in accordance with any parameters set out a Confirmation Notice, Primped Provider shall inform Primped of such limitations immediately via the Service. Primped Provider’s failure to notify Primped of the foregoing may result in a Service Failure or Absolute Service Failure as applicable.
- Primped Providers is responsible for checking all information set out in a Confirmation Notice (including any allergy or health concerns) in advance of a Confirmed Appointment. Primped Provider shall inquire at the commencement of a Treatment, whether any applicable Primped Members at the Confirmed Appointment have any health related or other issues including but not limited to allergies, sensitivities, ailments, medical disorders, as well as the use of any medication.
7.6 Service Failures
- In the event of a Service Failure, Primped Provider shall, at Primped’s sole discretion, forfeit all or a portion of the Provider Fee for the applicable Treatment.
- In the event of an Absolute Service Failure, Primped Provider will pay to Primped an amount equal to a maximum of the Service Fee for the Treatment.
- The parties intend that the forfeiture or payment of fees set out in Sections 7.6(i) and 7.6(ii) constitute compensation and not a penalty. The parties acknowledge and agree that the harm or actual damages of Primped and the Primped Member, caused by a Service Failure or an Absolute Service Failure would be very difficult to accurately estimate as of the Effective Date, and that the fees set out in Sections 7.6(i) and 7.6(ii) are a reasonable estimate of the anticipated or actual harm or actual damages that might arise from a Service Failure or an Absolute Service Failure. The fees set out in Sections 7.6(i) and 7.6(ii) shall not prevent Primped or Pimped Members from seeking further remedies as contemplated under this Agreement or applicable law.
- Primped Provider acknowledges and agrees that it is solely responsible for all costs and expenses arising from the provision of any Treatments including, any equipment, wages, permits, costs of fuel, licensing fees and insurance coverage.
- Equipment used by Primped Provider shall conform to applicable laws including laws pertaining to sanitization, safety, cleanliness, inspection, and operational capability. Except as otherwise required by applicable law, Primped Provider assumes all risk of damage or loss to its equipment.
- In consideration for the Service provided hereunder and unless otherwise negotiated, the parties hereby agree that Primped Provider shall pay Primped a referral fee of 18% of the Service Fee paid by Primped Members in respect of each completed Treatment (the “Referral Fee”) plus applicable taxes. For clarity, the Referral Fee shall apply to each Request made by Primped Members for a Treatment including, any additional treatments negotiated by Primped Provider directly with a Primped Member at the time of a Confirmed Appointment.
- In consideration for the performance of the applicable Treatment for a Confirmed Appointment, Primped Provider will receive a fee equal to the Service Fee less the Referral Fee (“Provider Fee”).
- Primped Provider hereby acknowledges and agrees that Primped may automatically deduct (set-off) the Referral Fee or any other fees due to Primped hereunder (including, the fees set out in Sections 7.6(i) and 7.6(ii)) from the Service Fee.
- Primped Provider will be informed prior to any Confirmed Appointment whether there will be free parking available. Where there is no free parking available, Primped Provider hereby acknowledges and agrees that they are responsible for any parking costs incurred in relation to a Confirmed Appointment that is $5.00 or less. Where parking exceeds $5 in cost, Primped Provider is required to send a photo of the parking receipt within 24 hours of a completed Treatment to Primped. Upon receiving the parking receipt, Primped will charge the Primped Member the excess parking costs above $5.00.
- Primped Provider is an independent contractor and neither Primped Provider, and for greater certainty, its employees or subcontractors, shall be deemed to be an employee of Primped. Primped shall not deduct or remit to any governmental authority any income taxes, employment insurance contributions, Canada Pension Plan contributions or any taxes or other similar amounts in respect of the Primped Provider and all such amounts shall be remitted by Primped Provider as required. Primped Provider is subject to the control or direction of Primped Member as to the means or methods of performing the Treatment. Without limiting the generality of the foregoing, Primped Provider is responsible for determining and complying with Primped Provider’s Sales Tax registration, collection and/or remittance obligations under applicable legislation. Primped shall remit to Primped Provider the Service Fee and any applicable Sales Tax collected by Primped Provider as set out in the weekly invoices from Primped and Primped Provider is responsible for remitting any and all applicable Sales Taxes on the Service Fee directly to the applicable tax authorities in accordance with applicable tax legislation. Primped Provider acknowledges that Primped Provider invoices and any similar records that are generated by Primped on behalf of Primped Provider as part of the Service will reflect Primped Provider’s Sales Tax registration details and other tax information as provided to Primped by Primped Provider, and that Primped Provider is responsible for ensuring that all such information is accurate and updated as required.
9. TERM AND TERMINATION
9.1 Term and Termination
- This Agreement is effective as of the Effective Date and shall continue until terminated in accordance with Section 9.2 (the “Term”).
- Primped Provider may terminate this Agreement at any time by providing Primped with prior written notice and by ceasing to use the Service. Primped may terminate this Agreement for convenience at any time without liability or notice to Primped Provider.
- Primped may terminate this Agreement for cause if Primped Provider: (a) is in breach of this Agreement (including all related Registration Forms) or any Confirmed Appointment, immediately upon written notice of such breach; (b) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against Primped Provider (and not dismissed within thirty (30) days thereafter); (c) fails to pay any amounts due hereunder.
9.3 Changes to the Service
Primped may, at any time without notice or liability, and for any reason whatsoever, terminate, change, suspend or discontinue any aspect of the Service, including: (a) changing the availability of, restricting access to, or imposing limits on any or all features, materials or services, provided as part of the Service; (b) removing, adding, modifying or otherwise amending any aspect of the Service; and (c) removing, adding, modifying or otherwise changing any Content on or made available through the Service. Primped reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the Service at any time without notice, but Primped Provider agrees that Primped has no obligation to do so.
9.4 Effects of Termination
Upon termination of this Agreement for any reason, Primped Provider shall immediately cease use of the Service and shall delete all Personal Information collected or otherwise disclosed through the Service.
The following Sections of this Agreement shall survive the termination or expiry of this Agreement: 2.5, 2.7, 4.1, 6.1, 6.4, 6.5, 7.6, 7.7, 8.1, 8.2, 9.4, 10, 11.1, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22.
During the Term, each receiving party shall use the same care to prevent disclosing to third parties the Confidential Information of the disclosing party as it employs to avoid disclosure, publication, or dissemination of its own information of a similar nature, but in no event less than a reasonable standard of care, and the parties acknowledge and agree that in the case of data in the Service, compliance with Section 5.1 (Security Measures) meets such standard. Except as contemplated by this Agreement, including for the purpose of providing the Service, no receiving party shall make any use of the disclosing party’s Confidential Information or refuse to promptly return, provide a copy of, or destroy the other party’s Confidential Information upon request of the other party (provided that Primped shall be excused from its performance hereunder to the extent that such Confidential Information was required for such performance). The receiving party shall immediately notify the disclosing party upon gaining knowledge of any disclosure, loss, or use of the disclosing party’s Confidential Information in violation of this Agreement. Each receiving party shall only share the disclosing party’s Confidential Information with its employees on a “need to know” basis in connection with performance of the party’s obligations under this Agreement. If the receiving party is served with a court order compelling disclosure of any Confidential Information of the disclosing party, it will, to the extent allowed under law, provide the disclosing party with immediate notice thereof, provide the disclosing party with a reasonable opportunity to oppose disclosure, and reasonably cooperate in good faith with the disclosing party in the event the disclosing party opposes disclosure. The parties acknowledge and agree that any disclosure of Confidential Information resulting from a data or security breach of the Service shall not be a breach of this Section 10.
11. PERSONAL INFORMATION
Primped Provider, in collecting, accessing and using Personal Information, and inputting the same into the Service, shall comply with all applicable laws with respect such Personal Information.
12. REPRESENTATIONS, WARRANTIES & COVENANTS
12.1 Primped Provider Representations, Warranties & Covenants
Primped Provider represents, warrants, and covenants to Primped that:
- it shall at all times comply with this Agreement, the Community Guidelines and its obligations hereunder;
- it has full authority to enter into the Agreement and to carry out the transactions contemplated under the Agreement, including providing the applicable Treatments to Primped Members;
- it will comply with all laws, rules and regulations applicable to it in performing its obligations under this Agreement;
- it will provide true, accurate, current and complete information, as requested by Primped;
- it currently and shall continue (at its sole cost) to possess all licences, certifications, permits and other applicable industry requirements necessary to perform the Treatments it represents to provide on the Service;
- it shall not give any medical or health-related advice to Primped Members;
- no actions, claims, findings or other proceedings related to, or arising from, the performance of its duties as a beauty, health and wellness service provider (including ongoing inquiries, complaints or investigation), have been brought against it, or against any beauty, health and wellness services corporation of which it is a shareholder, in any jurisdiction;
- it has never been the subject of a criminal investigation, charge or proceeding in any jurisdiction, and has no criminal record; and
- in entering in this Agreement, it is not breaching any partnership, associateship, employment or other covenant or agreement.
PRIMPED MAKES NO, AND ACTIVELY DISCLAIMS ANY, CONDITION, REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR THE CONTENT FOUND ON SAME. ALL OTHER CONDITIONS, REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICE, OR CONTENT FOUND ON SAME WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED BY PRIMPED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, PRIMPED MAKES NO WARRANTY THAT THE SERVICE WILL BE ERROR FREE, WILL FUNCTION WITHOUT INTERRUPTION OR WILL MEET ANY REQUIREMENTS OR PRIMPED PROVIDER’S EXPECTATIONS. HOWEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE STATUTORILY REQUIRED WARRANTY PERIOD. WITHOUT LIMITING THE FOREGOING, PRIMPED PROVIDER ACKNOWLEDGES THAT THE SERVICE IS NOT INTENDED FOR USE IN CONNECTION WITH ANY HIGH RISK OR STRICT LIABILITY ACTIVITY AND THAT PRIMPED MAKES NO, AND ACTIVELY DISCLAIMS ANY, CONDITION, REPRESENTATION, WARRANTY, OR GUARANTEE, AND SHALL HAVE NO LIABILITY, IN CONNECTION WITH ANY USE OF THE SERVICE IN SUCH SITUATIONS.
14. LIMITATION OF LIABILITY
PRIMPED REPRESENTATIVES (AS DEFINED IN SECTION 15.1) SHALL NOT BE LIABLE FOR (I) ANY COST OF COVER OR ANALOGOUS COSTS RELATED TO THE LOSS OF EQUIPMENT OR REPLACEMENT THEREOF; (II) ANY LOSS OF USE, LOST DATA, FAILURE OF THIRD PARTY SECURITY MECHANISMS, INTERRUPTION OF BUSINESS; OR (III) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR LOSS OF GOODWILL), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE, PROVIDED THAT THE FOREGOING SHALL NOT APPLY IN THE CASE OF GROSS NEGLIGENCE, OR WILFUL MISCONDUCT.
THE MAXIMUM LIABILITY OF ANY PRIMPED REPRESENTATIVES FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED, IN AGGREGATE, THE REFERRAL FEES PAID BY PRIMPED PROVIDER TO PRIMPED UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM OR CLAIMS. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL SURVIVE ANY FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY LIMITED REMEDY CONTAINED HEREIN. SUCH DIRECT DAMAGES SHALL BE THE FULL EXTENT OF MONETARY LIABILITY OF PRIMPED REPRESENTATIVES UNDER THIS AGREEMENT, REGARDLESS OF THE FORM IN WHICH ANY SUCH LEGAL OR EQUITABLE CLAIM OR ACTION MAY BE ASSERTED AGAINST PRIMPED, AND SHALL CONSTITUTE PRIMPED PROVIDER’S SOLE MONETARY REMEDY. PRIMPED PROVIDER ACKNOWLEDGES AND AGREES THAT IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. NOT ALL JURISDICTIONS PERMIT SUCH LIMITATIONS OF LIABILITY. IF PRIMPED PROVIDER'S JURISDICTION DOES NOT PERMIT THESE LIMITATIONS, THEY WILL NOT APPLY.
15.1 Primped Provider Indemnity
Subject to Section 15.2, Primped Provider shall indemnify, defend and/or settle and hold harmless at its own cost, Primped, its affiliates and each of their employees, officers, directors, shareholders, and agents (“Primped Representatives”) from any from any third party claims, causes of action, proceeding or suits (each, a “Claim”), arising out of or related to:
- any allegation that the use, in accordance with the terms of this Agreement, of Primped Provider Content or Primped Provider Data by Primped, or the licences granted under this Agreement, infringe any third party copyright or trademark in the Territory, in each case to the extent that the alleged infringement was not caused by Primped acting other than in accordance with this Agreement;
- any claim by a Primped Member or a customer of Primped Provider other than to the extent caused by a breach of this Agreement by Primped;
- any failure to comply with Primped Provider’s obligations under Section 8.2 (Taxes), or any breach of Section 10 (Confidentiality) or 11 (Personal Information) by Primped Provider; or
- any gross negligence or wilful misconduct of Primped Provider;
and Primped Provider shall pay any damages finally awarded, or settlement amounts entered into, based upon such a Claim.
15.2 Conditions of Indemnity
Primped shall have the right to be represented by counsel of its choice and to participate in the defence of any Claim; provided, however, that the expense of such counsel and such participation shall be borne by the Primped Provider and Primped shall not settle any such Claim without the prior written consent of the Primped Provider.
16. FORCE MAJEURE
In no event shall Primped be liable to Primped Provider, for any delay or failure to perform in breach of any of the terms of this Agreement to the extent that such breach results from an unforeseen event outside the control of the Primped, (a “Force Majeure Event”), including acts of God; acts of a public enemy; acts of terrorism, acts of any government; fires; floods; epidemics; quarantine restrictions; freight embargoes; and unusually severe weather conditions.
Primped Provider covenants and agrees that Primped Provider will not, at any time during the term of this Agreement and during the period of six months following the termination of this Agreement, for any reason, without the prior written consent of Primped, either directly or indirectly:
- solicit any Protected Entity in order to provide such Protected Entity with services, except in connection with the Service; or
- interfere with or attempt to interfere with the business of Primped or persuade or attempt to persuade any Protected Entity to discontinue or adversely alter such Protected Entity's relationship with Primped.
Primped Provider acknowledges that the non-solicitation covenants set out in this Section 17 are: (i) fair and reasonable restrictions on Primped Provider’s activities that are necessary to protect Primped’s business and to prevent unfair circumvention of the Service; and (ii) have been fully considered and understood by Primped Provider before entering into this Agreement.
18. NO ASSIGNMENT
Neither this Agreement nor any rights, licences or obligations hereunder may be assigned by Primped Provider without the prior written consent of Primped, provided such approval shall not be unreasonably withheld or delayed. Primped may assign this Agreement to an affiliate or to its successor upon a merger or the sale of all or substantially all its assets. Any attempted assignment in violation of this Agreement shall be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties’ successors and assigns.
19. PRIMPED PROVIDER RECORDS
Primped Provider acknowledges and agrees that (a) the Service includes records reflecting and tracking the number, login accounts, and access logs of all users (including Primped Provider) on the Service; and (b) such records shall be accessible and open at all times to Primped.
20. DISPUTE RESOLUTION
In the event of any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, breach or termination, or the Service (save and except with respect to such provisions which provide for an injunction or other immediate relief) between Primped and Primped Provider (a “Dispute”):
- the parties shall use reasonable efforts to resolve the Dispute;
- If the Dispute is not resolved by other means, the Dispute shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the ADR Institute of Canada, Inc. (the “Rules”) but, subject to the agreement of both Parties, the ADRIC is not required to administer the arbitration (the “Arbitration”). Unless otherwise agreed to in writing by the Parties:
- the Arbitration shall be conducted before one (1) arbitrator mutually agreed upon by the Parties. If the Parties are unable to agree upon an arbitrator within fourteen (14) days of the commencement of the Arbitration, the arbitrator shall be appointed in accordance with the Rules and the Arbitration shall proceed thereafter as an administered arbitration under the auspices of the ADRIC;
- the seat of the Arbitration shall be Toronto, Ontario, Canada;
- the language of the Arbitration shall be English;
- any award or determination of the arbitrator shall be final and binding on the Parties and there will be no appeal on any ground, including, for certainty, any appeal on a question of law, a question of fact, or a question of mixed fact and law; and
- all matters relating to the Arbitration, including all documents created in the course of or for the purposes of the Arbitration and any interim or final decision, order or award in the Arbitration, shall be kept confidential and shall not be disclosed by any Party to any third party (excluding their respective legal counsel and where necessary, financial advisors) without the prior written consent of the other Party, or unless required by applicable law.
- Notwithstanding the determination by the parties to utilize the dispute resolution process as specified above for the resolution of Disputes arising out of or in connection with this Agreement, nothing herein shall preclude either party from seeking and obtaining from a court of competent jurisdiction appropriate equitable relief, including a temporary restraining order or other injunctive relief.
In the event of any dispute concerning the definition of the Territory, or in connection with any changes in the political status or geographical boundaries of the Territory, the decision of Primped thereon shall be conclusive and binding.
This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada. Subject to Section 20.1 above, the parties irrevocably consent to the exclusive jurisdiction of the courts of Toronto, Ontario for the purposes of adjudicating any matter arising from or in connection with this Agreement. Except to the extent precluded by applicable law: (i) any parties to an action brought hereunder shall be individually named, and Primped Provider hereby waives any right it may have to litigate any such matter on a class or consolidated basis, or on bases involving disputes brought on a purported representative capacity; and (ii) for greater certainty, the parties hereby irrevocably waive any right they may have to trial by jury.
Primped is not an agent of any other transacting party or customer of Primped Provider. Primped Provider agrees that no joint venture, partnership, employment, or agency relationship exists between Primped Provider and Primped as a result of this Agreement or use of the Service and that Primped shall only act as a conduit in respect of the handling of the Service Fee and related Sales Taxes on behalf of Primped Provider. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall continue in effect. No modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy. This Agreement constitutes the entire agreement between Primped Provider and Primped with respect to the Service and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between Primped Provider and Primped with respect to same. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. For the purposes of this Agreement, “including” shall mean “including without limitation”. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
Any notice or other communication required or permitted to be given pursuant to or in connection with this Agreement shall be given as hereinafter provided to:
Primped Beauty Technologies
Attention: Primped Executive Team
Address: 71 Golfdale Road, Toronto, ON, M4N 2B5
And if to Primped Provider, at the mailing address or email address specified on Primped Provider’s Account.
Any such notice or other communication, shall be deemed to have been received at the earlier of (a) when delivered personally, (b) one (1) business day after being delivered by any electronic means of sending messages (in this Section, “Electronic Transmission”), including facsimile transmission, during normal business hours on a Business Day, but notice by Electronic Transmission shall only be sufficient if the notice includes or is accompanied by the sender’s name, address, telephone number and facsimile number or email address, the date and time of transmission and the name and telephone number of an individual to contact in the event of transmission problems and if acknowledgement of the transmission is transmitted to the sender by the recipient or the recipient’s electronic system, (c) one (1) business day after being deposited with a courier service that guarantees “next business day” delivery or (d) five (5) days after being deposited in the regular mail with postage prepaid. Notice of change of address or facsimile number shall also be governed by this Section 22.
PRIMPED COMMUNITY GUIDELINES
We are a positive, inclusive community here to support freelancers in the beauty and self-care space as well as individuals seeking to book services offered via the Service. The guidelines below were developed to help make your experience feel safe, respectful, and positive. These guidelines apply to everyone who uses the Services.
- Treat everyone with respect
Our community includes a diverse background of people. While you may encounter people that may not share the same beliefs as you or look like you, you are required to treat everyone in a respectful manner.
- Physical contact
Treatments received create instances where appropriate physical contact is required. Any inappropriate conduct is never allowed. This includes but is not limited to physical assault, sexual assault and misconduct, threatening and rude behaviour, unwanted contact, and discrimination.
- Follow the law
Everyone is responsible for knowing and obeying all applicable laws, including health and safety regulations.
- Damage to property.
Damaging property is never allowed. An example of this is damaging Primped Member’s household property such their furniture. If you damage property, you are responsible for the cost to fix or replace the damaged property.
- Help keep one another safe
Primped has procedures in place to create a safe experience for everyone. We also require everyone to provide a safe environment for each other. When safety is a concern to anyone, if you are in immediate danger please contact your local law enforcement. Please inform Primped as soon as reasonably possible of any issues or concerns you may have in regards to safety on the Primped platform, to allow us to take appropriate action in order to maintain a safe environment.
How Primped enforces our guidelines
Primped receives feedback through a variety of channels and reviews this feedback or any issues reported. Primped will investigate when legally required or when behaviour violates our Community Guidelines, or other applicable agreements or policies. Not following our Community Guidelines may result in loss of access to your Primped Account and the Service. Additionally, when law enforcement is involved, we will cooperate with their investigation.