Terms & Conditions
This Member Agreement (the “Agreement”) is entered into between Thought Collective Incorporated (“TC”) and the member set out in the check out process (“Member”), and is effective as of the date set out above (“Effective Date”).
In consideration of the mutual covenants and agreements hereinafter contained, TC and the Member (each, a “Party”, and collectively, the “Parties”) agree to the terms set out in this Agreement, including those set out in the attached Schedules. Capitalized words used but not otherwise defined in the main body of this Agreement have the meaning given to them elsewhere in the Agreement.
The following Schedules are attached to and form an integral part of this Agreement:
Schedule A – Terms and Conditions
Schedule B – Membership Services and Fees
This Agreement may be executed and delivered in one or more counterparts, each of which when executed will be deemed to be an original but all of which taken together shall constitute one and the same agreement.
EACH PARTY ACKNOWLEDGES HAVING UNDERSTOOD AND ACCEPTED THE TERMS AND CONDITIONS SET OUT ABOVE AND IN EACH OF THE ATTACHED SCHEDULES.
SCHEDULE A TERMS AND CONDITION
1. INTERPRETATION
1.1 Definitions. In addition to the terms defined elsewhere in the Agreement, the following terms have the following meanings:
(a) “Agreement” means the Membership Agreement entered into between TC and the Member and to which this Schedule A is attached, together with all other Schedules and documents referred to therein;
(b) “Business Day” means any day excluding a Saturday, Sunday or statutory holiday in the Province of Ontario;
(c) “Confidential Information” means any information identified by either Party (or a Party’s affiliates or Representatives) as confidential or proprietary or which, under the circumstances, ought to be treated as confidential or proprietary. Confidential Information includes any Personal Information and any non-public information related to the disclosing Party’s (or any of its affiliates’) business, customers, clients, members, employees, data, equipment, financial statements, Intellectual Property, inventory, strategies, products, suppliers, or trade secrets, regardless of the manner or means by which such information is disclosed or communicated. Confidential Information does not include information that: (i) entered the public domain without the receiving Party’s or any of its Representatives’ breach of any obligation owed to the disclosing Party; (ii) became known to the receiving Party from a source other than the disclosing Party other than by the breach of an obligation of confidentiality owed to the disclosing Party; or (iii) was independently developed by the receiving Party without reference to Confidential Information of the disclosing Party and such independent development is adequately documented. Notwithstanding anything to the contrary, all Personal Information is Confidential Information;
(d) “Intellectual Property” means trade or brand names, business names, trademarks, service marks, copyrights, patents, trade secrets, know-how, inventions, research data, drawings and designs, formulae, processes, technology, and other intellectual, industrial or proprietary rights, together with all rights under licences and other agreements relating to any of the foregoing or which embody, emulate or employ any part of the foregoing;
(e) “Personal Information” means any information about an identifiable individual or other information that is subject to any applicable privacy laws; and
(f) “Representatives” means a Party’s directors, officers, employees, agents, consultants, advisers and other representatives.
1.2 Interpretation. In the Agreement, words signifying the singular number include the plural and vice versa, and words signifying gender include all genders. Every use of the words “including” or “includes” in the Agreement are to be construed as meaning “including, without limitation” or “includes, without limitation,” respectively.
2. TERM
The Agreement shall commence on the Effective Date and continue until terminated in accordance with Section 8 (the “Term).
3. SERVICES
3.1 Services. During the Term, TC shall perform and provide the services and deliverables described in Schedule B to the Agreement (collectively, the “Services”), in accordance with the terms of the Agreement. The Services shall be provided by TC on a subscription basis, which, subject to the terms of the Agreement, shall automatically renew each month.
3.2 Acknowledgement. The Member acknowledges and agrees that any and all information presented or otherwise made available to the Member, directly or indirectly, by TC or its Representatives on, through or in connection with the Services is for informational purposes only. The Member is solely responsible for its use or misuse of any such information and for verifying the accuracy and applicability thereof.
3.3 Performance. TC will perform its obligations under the Agreement honestly and in good faith, in a prudent, diligent and professional manner, in accordance with the quality and standard of care with which similar services are normally or customarily performed and in accordance with applicable laws.
4. MEMBER OBLIGATIONS
4.1 Compliance. The Member acknowledges and agrees that it and its Representatives shall comply with: (a) all TC policies and procedures, in force from time to time, which are brought to the Member’s attention or of which the Member could reasonably be aware; and (b) all applicable laws.
4.2 Safeguarding Reputation. The Member shall refrain from taking any action, which is intended or would reasonably be expected, to harm TC’s reputation or which would reasonably be expected to lead to unwanted or unfavourable publicity for TC and/or the Services.
5. PRICING AND PAYMENT
5.1 Fees. Subject to the terms of the Agreement, the Member shall pay to TC, in advance, the monthly fees for the Services, as set out in Schedule B, plus applicable taxes (“Fees”).
5.2 Fee Adjustment. TC reserves the right to adjust the Fees from time to time during the Term and will provide the Member with at least thirty (30) days prior notice of any change in the Fees before they go into effect. If the Member does not wish to continue its subscription to the Services under such new prices, notwithstanding Article 8, the Member may terminate the Agreement effective at the end of the then-current calendar month.
5.3 Payment.
(a) The first Fee payment shall become due and payable immediately upon execution of the Agreement. Each subsequent Fee payment shall become due and payable on the first Business Day of each calendar month thereafter during the Term. For clarity, the first Fee payment shall be pro-rated based on the number of days TC will be providing the Services during the first calendar month of the Term.
(b) The Member shall make all payments due and owing to TC under the Agreement by way of credit card. The Member acknowledges and agrees to TC’s use of third party service providers for credit card processing services in connection with the Agreement. TC shall not collect, store or retain any payment information the Member provides for any purpose other than facilitation of such transactions and future communications with the Member in respect of its payment for the Services.
(c) The Member consents to the collection, use and disclosure of its payment information (including any related Personal Information) by and to TC’s third party payment processor for the foregoing purposes. The Member further acknowledges and agrees that the third party payment processor may also collect its Personal Information and/or other information and the collection and use of such information will be subject to the terms of such third party payment processor’s privacy policy, if any. The Member acknowledges and agrees that TC shall have no liability to the Member in connection with the use and disclosure of its Personal Information when collected by the third party payment processor.
(d) The Member represents and warrants that: (i) it is the authorized owner of, or is otherwise authorized to use, any credit card that it provides TC in connection with the Agreement, and authorizes and directs the third party payment processor to charge all applicable Fees to such credit card; and (ii) all payment information that it provides in connection with the Agreement is accurate, complete and current.
5.4 Failure to Pay. If the Member fails to pay the Fees when due, TC shall provide notice of such non-payment to the Member. If the Member fails to pay any such overdue amounts within thirty (30) days of such notice, TC may, in its sole discretion: (a) suspend the Services until payment of all such overdue amounts is received in full; (b) immediately terminate the Agreement; or (c) charge interest on the overdue amounts at the rate of one and a half percent (1.5%) per month until payment of all such overdue amounts is received.
5.5 Receipt. TC shall issue a payment receipt via email in PDF form within five (5) Business Days of the third party payment processor receiving full payment of the Fees.
6. CONFIDENTIAL INFORMATION
6.1 Confidentiality. Neither Party will disclose to any third party or use, and will cause its Representatives not to disclose or use, the other Party’s Confidential Information for any purpose, except as specifically permitted by the Agreement, by way of prior written consent or as required by law. Without limiting the generality of the foregoing, each Party agrees that it shall restrict disclosure of the other Party’s Confidential Information to those of its Representatives who need to know or use such information in connection with the Agreement, provided such Representatives are under written obligations of confidentiality and restrictions on use equivalent to those set out herein. The receiving Party shall use the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, dissemination or publication of the other Party’s Confidential Information. For clarity, any Confidential Information of another TC member, which is made available, directly or indirectly, to the Member in connection with Services and/or the Agreement, shall be considered the Confidential Information of TC.
6.2 Privacy. Each Party shall comply, and shall cause its Representatives to comply, with all applicable privacy laws with respect to any Personal Information obtained, accessed, stored, transferred or otherwise handled in the performance of its obligations under the Agreement.
6.3 Notice. In the event of any unauthorized access, collection, use, disclosure or disposal of the disclosing Party’s Confidential Information, the receiving Party agrees to: (a) promptly notify the disclosing Party, in writing, of the unauthorized incident with full details; (b) provide regular and comprehensive updates about the unauthorized incident to the disclosing Party; and (c) immediately take all reasonable steps to respond to, and prevent the recurrence of, the unauthorized incident.
6.4 Irreparable Harm. The receiving Party acknowledges that a breach of this Article 6 may cause irreparable damage or irreparable harm to the disclosing Party for which there is no adequate remedy in damages, and agrees that the disclosing Party is entitled to an interim and permanent injunction to prevent continuing harm.
7. INTELLECTUAL PROPERTY
7.1 TC Background IP. Subject to any proprietary rights of any third party, TC retains all right, title and interest in and to any and all Intellectual Property conceived, developed, reduced to practice, or otherwise made or acquired by TC prior to the Effective Date or otherwise outside the scope of the Agreement (“TC Background IP”).
7.2 Work Product. Except as otherwise agreed by the Parties in writing, TC shall retain all right, title and interest in and to all Intellectual Property that arises or is developed, produced or created in connection with the Services, whether independently by TC or jointly by the Parties, including, for clarity, all improvements and modifications to any TC Background IP that are developed, produced or created in connection with the Services (collectively, “Work Product”, and together with the TC Background IP, “TC IP”). The Member irrevocably assigns to TC all right, title and interest in and to the Work Product and expressly waives any claim to moral rights over any Work Product. The Member shall assist TC in every reasonable way to secure, maintain and defend for TC’s benefit all Intellectual Property rights in the Work Product, including, when requested, obtaining from all individuals involved in the development of the Work Product an express and irrevocable waiver, in favour of TC, of any and all moral rights that such individuals, as authors, have with respect to the Work Product.
7.3 Licence to Member. To the extent that any TC IP is provided to the Member as part of the Services, or is otherwise incorporated into or necessary for the use of any deliverables provided to the Member by TC as part of the Services, TC grants to the Member a limited, non-exclusive, non-transferable licence to use such TC IP to that extent and for its personal and/or internal business purposes only.
7.4 Trademark/Logo Use. Except as expressly provided in the Agreement or as required or permitted by applicable law, the Member shall not use the trademark, corporate name or logo of TC without TC’s prior written consent.
7.5 Restrictions on Use. The Member shall not, at any time, directly or indirectly: (a) remove any product identification, trademark, copyright, confidentiality, proprietary or other notice contained on or within the TC IP; (b) modify or create any derivative works from the TC IP or any part thereof; (c) permit the TC IP to be used for third party use or in relation to the provision of services to any third party; (d) otherwise copy or use TC IP for any purpose or in any manner not expressly permitted in the Agreement; (e) permit any third party to do any of the foregoing; or (f) use the TC IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any person, or that violates any applicable law.
7.6 Feedback. The Member and its Representatives may, from time to time provide TC with suggestions, recommendations or other feedback related to TC and/or the Services. The Member grants to TC a non-exclusive, worldwide, non-transferable, royalty-free, fully paid-up, irrevocable, perpetual licence to use, reproduce and incorporate into any TC product and/or service, any suggestions, recommendations or other feedback received by TC from the Member.
8. TERMINATION
8.1 Termination by Member. The Member may, at any time and without cause, terminate the Agreement, without penalty or further liability, upon giving the other Party at least ninety (90) days’ prior written notice.
8.2 Termination by TC. TC may immediately terminate the Agreement:
(a) at any time, without penalty or further liability, upon written notice to the Member;
(b) upon written notice to the Member, if the Member: (i) is in breach of the Agreement and such breach has not been cured within ten (10) days after receiving written notice thereof; or (ii) becomes insolvent or bankrupt or makes an assignment for the benefit of creditors, a receiver is appointed, or a voluntary or involuntary petition in bankruptcy is filed concerning such other Party.
8.3 No Refunds. If the Member terminates the Agreement for any reason prior to the last day of a calendar month during the Term, the Member is not eligible for a refund but will retain access to the Services for the remainder of such calendar month, after which the Member’s access to the Services will be cancelled. For clarity, the effective date of termination shall be the last day of such calendar month.
8.4 Obligations upon Termination. Upon termination of the Agreement:
(a) each Party shall return or destroy all Confidential Information of the other Party in its possession or under its control, including all originals, copies and summaries;
(b) the Member shall immediately cease all use of any TC IP, and return or destroy any materials containing TC IP that are in its possession or control; and
(c) the Member shall immediately pay any and all outstanding Fees due and owing to TC for all Services provided up to the effective date of termination.
9. INDEMNITY AND LIMITATION OF LIABILITY
9.1 Indemnity. The Member will indemnify, defend (at TC’s option), and hold harmless TC and its Representatives from and against any and all claims, liabilities, losses, damages, demands, liens, actions, penalties, costs and expenses (including reasonable legal fees) (collectively, “Claims”) arising out of or in any way related to: (a) the Member’s or its Representatives’ reliance on any materials or information obtained through or in connection with the Services, whether or not obtained directly or indirectly from TC or its Representatives; (b) the Member’s breach of the terms of the Agreement; (c) any wilful or negligent act or omission of the Member or its Representatives; and (d) any allegation that TC’s or its Representatives’ use or disclosure of any materials or information provided by the Member pursuant to the Agreement infringes any Intellectual Property rights of a third party. The Member shall immediately notify TC of such Claims and fully defend such Claims at its own expense.
9.2 Limitation of Liability. In no event will TC be liable for any direct, indirect, special, incidental, consequential, exemplary or punitive damages or any damages for loss of profits, loss of data, business interruption or loss of business information, arising from or relating to the Services or the Agreement. These limitations will apply regardless of the Claim, and regardless of whether TC had been advised of the possibility of such damages. If circumstances arise where the Member is entitled to recover damages relating to the Agreement, the aggregate liability of TC, if any, will in no event exceed the value of the Fees paid to TC in the three (3) months preceding the event giving rise to such damages.
10. DISCLAIMER
The Services are not a substitute for, nor do they constitute, legal or professional advice. The Services are provided for general informational purposes only. TC explicitly states that it is not engaged in providing legal and/or professional advice and the Member should not rely on TC or the Services for such purposes. The Services are provided on an “as is” and “as available” basis without warranties of any kind, whether express, implied, statutory or otherwise, including any implied warranties of merchantability, quality, title, non-infringement and fitness for a particular purpose. Without limiting the generality of the foregoing, TC does not warrant or represent that the Services and/or the TC IP will be free from bugs or that its use will be uninterrupted or error-free, or make any other representations regarding the use, or the results of the use, of the Services and the TC IP with respect to correctness, accuracy, reliability or otherwise. To the maximum extent permitted by applicable law, TC is not responsible for any errors or omissions in any information or material contained in or on the Services or accessed through the Services. Each Party acknowledges that it has not entered into the Agreement in reliance upon any warranty or representation except those specifically set forth herein.
11. DISPUTE RESOLUTION
11.1 Good Faith Negotiations. Without limiting the termination rights set out at Article 8, in the event of a dispute between the Parties arising out of or in connection with the Agreement, representatives of each Party shall make reasonable efforts to resolve the dispute through negotiations in good faith within thirty (30) days after a written request from either Party to the other.
11.2 Mediation and Arbitration. Without limiting termination rights set out at Article 8, if a dispute referred to in Section 11.1 is not settled through negotiation, then the Parties shall try in good faith to settle the dispute by mediation, which shall by conducted by a mutually agreed-upon, certified mediator, in accordance with the ADR Institute of Canada Mediation Rules. If mediation is not successful, then such unresolved dispute shall be submitted to final and binding arbitration. Disputes subject to arbitration will take place in Ottawa, Ontario, and shall be governed by the ADR Institute of Canada Arbitration Rules (“ADR Rules”). A single arbitrator shall be selected in accordance with the ADR Rules. The arbitrator’s award may be entered into any court having jurisdiction. Fees and expenses of the mediator and arbitrator will be shared equally by each Party in the dispute, but each Party shall otherwise bear its own legal and other expenses.
11.3 Continued Performance. Each Party shall continue to perform its obligations in accordance with the terms of the Agreement during any dispute, negotiation, mediation or arbitration.
12. GENERAL
12.1 Links. TC may provide or make available to the Member content, materials and other information created expressed and/or otherwise made available by other individuals or entities, including other TC members, which are not associated or affiliated with TC. Such content, materials and other information is provided solely as a convenience and the provision of such content, material and/or information does not imply endorsement, investigation or verification by TC. TC is not responsible for such content, material and other information, including the Member’s use, misuse or reliance thereon, and makes no representation or warranty relating thereto.
12.2 Independent Contractor. TC is and will remain an independent contractor. Under no circumstances will the Agreement be deemed to create any partnership, joint venture, association, syndicate, agency or employment relationship between a Party or its Representatives and the other Party. No Party will have any authority to make any statements, representations or commitments of any kind, or to take any action or incur any liability, which will be binding on the other Party.
12.3 Further Assurances. Each Party shall from time to time promptly execute and deliver all documents and take all further action reasonably necessary to give effect to the provisions of the Agreement.
12.4 Severability. If any provision of the Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision and all other provisions shall, to the extent reasonably possible, continue in force and effect.
12.5 Waiver. Except as provided for in the Agreement, a waiver by any Party of any rights or the failure to exercise any remedy will not operate or be construed as a continuing waiver of the same right or remedy or any of the other of such Party’s rights or remedies.
12.6 Notice. Any notice or communication to be made by a Party to the other under the Agreement shall be in writing and shall be made by prepaid mail, overnight courier, personal delivery or email addressed to the Member at the address set out in the main body of the Agreement or to TC as follows:
E 1138 Point Road
White Lake, Ontario K0A 3L0
Attention: Christopher Smith, President
Email: chris@jointhecollective.com
Such notice shall be deemed to have been received: (a) if sent by personal delivery or email, on the date it was sent; (b) if sent by courier, on the next Business Day following delivery; or (c) if sent by regular mail, on the fifth (5th) Business Day following the date of mailing. Either Party may change its address for the purpose of this Section by giving written notice of such change to the other Party in the manner set out above.
12.7 Survival. Upon expiration or termination of the Agreement, all provisions of the Agreement, which, by their nature and surrounding circumstances, reasonably should survive expiration or termination, will survive such expiration or termination.
12.8 Assignment. The Agreement is binding upon and shall enure to the benefit of each Party and their respective successors and permitted assigns. The Member shall not assign, transfer or pledge the Agreement, or any of its rights or obligations thereunder, without the prior written consent of TC. No assignment of the Agreement shall impose any liability upon TC. TC may assign the Agreement at any time.
12.9 Entire Agreement; Amendment. The Agreement contains the entire understanding and agreement between the Parties with respect to the subject matter thereof and replaces any and all other or previous agreements, negotiations and understandings between the Parties, whether written or oral. The Agreement may only be amended by written agreement signed by each Party.
12.10Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to any conflicts of law principles. The Parties irrevocably attorn to the exclusive jurisdiction of the courts located in Ontario.
12.11No Contra Proferentum. The terms of the Agreement are the product of the joint efforts of both Parties and have been reviewed by each Party’s professional advisors, and each Party acknowledges that no rule of interpretation favouring one Party over another based on authorship will apply to resolve any ambiguity.
12.12Force Majeure. Except as expressly provided in the Agreement, neither Party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control that could not have been avoided by the exercise of reasonable foresight, including acts of war, acts of God, epidemics, pandemics, public health emergencies, earthquakes, floods, embargoes, riots, sabotage, terrorism, or governmental acts (not resulting from the actions or inactions of the Party relying on such failure or delay), provided that the Party affected by such failure or delay gives the other Party prompt notice of such cause and uses reasonable efforts to promptly correct such failure or delay in performance.
12.13Publicity. Member acknowledges and agrees that TC may use Member’s name for the purposes of identifying the Member as a member of the Services and/or customer of TC, including on TC’s website.
Paramountcy. In the event of any inconsistency, conflict or ambiguity concerning the Agreement, the following, in order of precedence, shall control and supersede any such inconsistency, conflict, or ambiguity as follows: (a)the terms of this Schedule A; (b) Schedule B; and then, (c)the remainder of the Agreement.
SCHEDULE B
MEMBERSHIP SERVICES AND FEES
Membership packages and pricing are as selected during the check out process subject to change as per SCHEDULE A.