Dentsu Canada Inc. Standard Terms and Conditions – Creative Services

1. Application of Terms. These terms and conditions (“Terms” or “Agreement”) apply to any strategic consulting, advertising services, creative content development, event planning or production services and related services (including Media Services, as defined below, if so purchased by the Client) (collectively, the “Services”) provided by Dentsu Canada Inc. or its affiliated agencies (“Agency”) to the client (the “Client”) pursuant to or in connection with the purchase order, estimate, invoice or other document to which these Terms are attached, or which references these Terms. 

2. Fees and Billing. Unless otherwise agreed in writing by the Client and Agency, Agency’s standard hourly rates and other standard charges for all Services shall apply. Unless the Client and Agency agree in writing upon a different schedule, Agency shall invoice Client monthly for all fees, costs and expenses incurred in connection with the provision of the Services. All amounts invoiced pursuant to this paragraph shall be due and payable within thirty (30) days of the date of the invoice.  All amounts due and owing by the Client that are not paid by the due date shall bear interest at a rate of 1% per month (12% per annum). Client shall be responsible for payment of all applicable taxes, including without limitation HST, GST and similar taxes, exigible on the provision of the Services.

3. Production, Third Party and Out-of-Pocket. Unless the Client and Agency otherwise agree in writing, Agency may invoice the Client in advance for up to 100% of any components of the Services that are provided by third parties (including without limitation production fees/costs and other third party service fees/costs), where those third parties require an advance or down-payment, with the balance to be invoiced upon completion of such production or third party services. All such invoices will be payable as per Section 2 above. Client shall reimburse Agency for all actual out-of-pocket expenses incurred by Agency in connection with the performance of Services, provided Client approves such expenses in advance. 

4. Creative Materials – Ownership and Responsibilities. 

• Ownership of Deliverables. Save and except for Agency Property or Third Party Works (as hereinafter defined) or as may otherwise be expressly agreed in writing by Agency and the Client, all advertising materials (including without limitation preliminary sketches and drawings, layouts, copy, storyboards, scripts, finished artwork, laser prints, photography, films, animations, audio/visual footage, videotapes, transcriptions, translations, graphics, logos, trademarks, trade-dress, taglines, music scores, tracks, performances, and musical themes or jingles) (collectively, the “Deliverables”) which are produced for the Client by Agency, or by any employee or subcontractor of Agency, and all copyright and other intellectual property rights (subject as hereinafter provided) therein shall be the sole and exclusive property of the Client, and upon payment by the Client in full of all fees and charges owing to Agency in respect of the Services rendered are hereby assigned by Agency to the Client. 
• Client hereby grants to Agency a non-exclusive, royalty-free licence to use the Deliverables and Client Content (defined below) solely as necessary to perform the Services in accordance with these Terms. For the purposes of these Terms, “Third Party Works” means any materials in respect of which rights are owned, or have been reserved, by some third party, other than Agency (or the Client) or its employees or subcontractors. Agency is not prevented from recommending to the Client the use of ideas, concepts or creations that may include Third Party Works. Agency will, in such event, use commercially reasonable efforts to advise Client that the proposed ideas, concepts or creations may contain Third Party Works and, if so instructed in writing by the Client, will (at the Client’s expense) use reasonable commercial efforts to obtain appropriate licenses for the use of such Third Party Works. Client shall use the Services and Deliverables containing or otherwise including Third Party Works only in accordance with any usage restrictions and licence conditions specified by Agency or third party licensor. 
• Agency Property – The Client acknowledges that Agency (or its affiliates) possesses certain inventions, processes, know-how, trade secrets, improvements, other intellectual property and other proprietary assets, including analytical methods, procedures and techniques, computer technical expertise, software code and other web-based instructions and designs, all of which have been independently developed and continue to be developed by Agency and which relate to Agency’s business and operations (collectively, the  “Agency Property”).  The Client and Agency agree that any Agency Property or improvements thereto which are used, improved, modified or developed by Agency under or during the term of this Agreement are the sole and exclusive property of Agency notwithstanding that such Agency Property may be incorporated into any Deliverables delivered hereunder.  Agency agrees, on a non-exclusive, royalty-free basis, to license to the Client any Agency Property incorporated into any Deliverables delivered to and paid for by the Client, for use solely in association with such Deliverables.
• Client Content – As between the parties, all intellectual property rights in and to Client Content shall remain vested in Client. The Client represents and warrants that any content, materials or information provided by the Client for use by Agency in any Deliverables (“Client Content”) is not and will not be libelous or slanderous, will not constitute an infringement of the rights (including without limitation trademark, patent, copyright, or other intellectual property rights) of any third party, and that such Client Content will, in all respects, comply with all applicable laws, advertising standards and all such industry standards as may from time to time be applicable to the Client or its products or services.
• Advertising Clearance – The Client shall be responsible for the legal review and legal compliance of all Deliverables, and if applicable, obtaining any third party clearances (including without limitation trademark searches, advertising standards clearances, and media and regulatory approvals) for Deliverables and any other advertising in advance of their use, publication or broadcast. 
• Agency Use, Promotion – Agency shall be entitled (both during and after the Term) to use the Deliverables for the purpose of promoting its own business (for example, but without limitation, on its corporate websites and for other activities such as entering Deliverables for industry awards, internal communications and promotion worldwide).

5. Indemnity. Client shall indemnify and hold harmless the Agency, its affiliates and their respective agents, employees and representatives (the “Agency Indemnitees”) from and against any and all liabilities, losses, damages, expenses, or costs (including reasonable legal costs and fees) (together, “Losses”) incurred by an Agency Indemnitee as a result of any claim, suit, action, proceeding, fine or penalty brought, made or assessed by any third party (including, for purposes of this section, a governmental authority) (together, “Claims”) arising out of or relating to: (a) the Client Content; (b) the Client’s breach of any of its representations or warranties or obligations under these Terms; or (c) Client’s gross negligence or willful misconduct.

6. Confidentiality. Neither Agency nor the Client (each, a “party”) will divulge, disclose or communicate to any other person (except to those of its employees who have a need to know and who are bound by a corresponding obligation not to divulge, disclose or communicate) any Confidential Information (as hereinafter defined) pertaining to, or to the business of, the other party.  For purposes of this Agreement, “Confidential Information” means information about the Client or Agency, as applicable, or its respective business which, at the time of its receipt by the recipient party, is non-public, confidential or proprietary information, including, without limitation, information concerning a party’s financial condition, prospects, technology, customers, clients, suppliers, pricing (including without limitation supplier media rates), methods of doing business, products or services. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain through no wrongful act or omission on the part of the recipient; (ii) is in the recipient’s possession, without an obligation of confidentiality with respect thereto, at or prior to the time of disclosure to the recipient; (iii) is disclosed to the recipient by a third party which to recipient’s knowledge has no obligation of confidentiality with respect thereto; (iv) is independently developed by the recipient without reference to the other party’s Confidential Information. Each party acknowledges that the other would be irreparably damaged by its breach of any of its obligations under this Section and each party further acknowledges and agrees that the other party will be entitled to seek injunctive relief to prevent its violation of its obligations under this Section.

7. Termination/Expiration of Services. The Services between the Client and Agency may be terminated by either the Client or Agency: (i) at any time upon not less than ninety (90) days’ prior written notice to the other party; (ii) immediately in the event (A) of a material breach by the other party that remains uncured following written notice to the breaching party and a thirty (30) day opportunity to cure; (B) such other party makes an assignment for the benefit of creditors, permits the appointment of a trustee or receiver of all or a substantial portion of its assets, admits in writing its inability to meet its obligations when due or commits any other act of bankruptcy or institutes voluntary proceedings in bankruptcy or insolvency; or (C) such other party dissolves or otherwise ceases to function as a going concern or to conduct its operations in the normal course of business.

8. Media Buying Services. If Agency provides services to the Client relating to media planning, placement or buying (the “Media Services”) it shall do so as a principal and not as an agent for Client in respect of dealings with media owners, additional terms and conditions available at https://www.dentsu.com/ca/en/Media-Services-Standard-Terms-And-Conditions shall apply. If Client opts to use trading desk/programmatic services from AMNET Media Canada, Inc., such services shall be treated as services provided by an independent third party from Agency and shall be subject to separate terms and conditions available at https://www.dentsu.com/ca/en/Amnet-Standard-Terms-And-Conditions. For the avoidance of doubt, such services shall not form part of the Services or this Agreement. 

9. Insurance.  Agency may arrange and maintain (at its sole cost and expense) credit insurance coverage on the fees and media expenditure of Client. Where, for any reason, Client’s creditworthiness is deemed inadequate by Agency and/or this insurance coverage is either refused, withdrawn, or inadequate to cover the liabilities of Client, Client agrees to arrange for suitable financial guarantees to be granted to Agency.  If Client is unable to arrange for alternative financial guarantees to meet its commitments, then Agency will invoice Client for the amount to be paid prior to commitment with the media vendor or provision of Services, and such commitments shall only be made following receipt by Agency of cleared funds in payment of such invoices.  If Client is unwilling and/or unable to provide advance payment or arrange for suitable (to the reasonable satisfaction of Agency) financial guarantees, Agency shall be entitled to (i) cancel existing media bookings affected by such failure and/or (ii) automatically suspend all of Agency’s obligations in relation to the provision of the Services, including the booking of media and committing to other expenditures under this Agreement with respect to the affected media. If Client cancels or requests changes to a media expenditure previously authorized, Agency shall attempt to implement Client’s instructions at the lowest cost possible, however, Client shall be responsible for any charges or penalties charged by the media supplier in connection with such cancellation or modification.  

10. Payment for Authorized Commitments. Upon termination or expiration of any agreement or arrangement for the Services between the Client and Agency, the Client shall assume responsibility for, and indemnify Agency in respect of, all contracts and commitments entered into by Agency on behalf of or for or the benefit of the Client, and shall pay for all Services actually rendered, prior to the effective date of termination or expiration. Upon the effective date of termination or expiration, the Client shall pay Agency an amount equal to the unpaid remaining portion of any third party commitment made by Agency and approved by the Client that cannot be terminated by or before the date of such termination or expiration. For the avoidance of doubt, no termination or expiration of any agreement or arrangement for the Services between the Client and Agency shall relieve the Client from the obligation to pay Agency for all Services rendered or approved out-of-pocket expenses incurred or committed to prior to such effective date of termination.

11. Privacy. To the extent, the Client supplies the Agency with 'personal information' or 'sensitive information' as defined in the Personal Information Protection and Electronic Documents Act (“PIPEDA”) or asks the Agency to undertake activities covered by the Canadian Anti-Spam legislation commonly referred to as “CASL” (collectively, the “Privacy Laws”), each party agrees to comply with the Privacy Laws in connection with this Agreement. Client agrees that it shall not provide the Agency with any Client Content which is subject to the privacy laws of another jurisdiction or to which the Client does not have adequate consent for such activities.

12. Assignment and Sub-Contracting. Client acknowledges and agrees that Agency may contract out, assign or otherwise delegate its obligations to render the Services hereunder to one or more of its direct or indirect affiliates, without prior disclosure to or specific written approval by Client, such affiliates being deemed approved by Client to render such Services.  Agency will remain principally liable for any breach of this Agreement by its direct or indirect affiliate(s). Additionally, Agency may sub-contract any or all of its obligations under this Agreement provided that Agency shall remain at all times liable for the performance of this Agreement. Client may not assign or subcontract this Agreement to any party other than a Client affiliate without Agency’s written consent, which consent shall not be unreasonably withheld. 

13. Cannabis. Services provided to Clients in the cannabis industry shall be subject to the additional terms available at  https://www.dentsu.com/ca/en/Cannabis-Standard-Terms-And-Conditions. 

14. Limitation of Liability. Notwithstanding any other provision contained herein, it is understood and agreed that Agency’s total maximum liability arising out of or related to the Services and these Terms shall be limited to direct damages and such liability shall, in the aggregate, not exceed the value of the fees paid by Client in respect of the Services provided under these Terms in the twelve (12) month period immediately preceding the event which gave rise to the liability. IN NO EVENT WILL AGENCY BE LIABLE TO THE CLIENT FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFIT, LOSS OF CONTRACTS, LOSS OR DAMAGE TO REPUTATION AND/OR GOODWILL, OR LOSS AND CORRUPTION OF DATA, REGARDLESS OF THE FORM OF ACTION, WHETHER IN AN AGREEMENT, TORT, STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE DAMAGES WERE FORESEEABLE. AGENCY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE DELIVERABLES AND THE AGENCY PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

15. Miscellaneous. Anti-bribery. Each party warrants and undertakes that it will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Canadian Corruption of Foreign Public Officials Act (the “CFPOA”). Force Majeure. Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement (other than payment obligations) caused by circumstances beyond its reasonable control (“Force Majeure Event”). The affected party shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event. Governing Law and Headings. These Terms shall be construed, interpreted and governed by the laws of the Province of Ontario and the laws of Canada applicable therein, without regard to conflicts of laws principles.  Exclusive jurisdiction and venue for any disputes between the parties will be in the courts located in the Province of Ontario. The use of headings in these Terms is for ease of reference only and is not intended to affect the construction or interpretation of these Terms. Survival. Sections 1, 2, 4,5,6, 10 and 13-15 shall survive the termination or expiration of these Terms, as shall any other provisions which, by the nature of the rights or obligations set therein, would reasonably be expected to be to be intended to so survive. These Terms Govern. These Terms govern the provision of Services by Agency and shall supersede any conflicting or inconsistent terms in any document or instrument presented by the Client regarding any Services to be provided by Agency, and these Terms shall govern and control to full extent of any such conflict or inconsistency. No oral agreement, handwritten edits, or other understanding shall in any way modify or change these Terms unless agreed to in writing and signed by Agency. Counterparts. This Agreement may be signed in counterparts and by the parties on separate counterparts, each of which when so executed shall be an original, but all counterparts shall together constitute one and the same document. Notice. All notices under these Terms shall be sent to the address of the parties specified on the ordering document to which these Terms are incorporated by reference. All notices may be sent by national courier or by email and will be deemed to be received two (2) days after dispatch if by courier, or one (1) day after dispatch if by email.  If by email to Agency send to the Attention of President with a copy to General Counsel legalnotice@dentsu.com . No Waiver of Default. Any purported waiver by Agency of any default, breach or non-compliance under these Terms is not effective unless in writing and signed by the Agency. No waiver shall be inferred from or implied by any failure to act or delay in acting by Agency in respect of any default, breach or non-observance or by anything done or omitted to be done by the Agency. The waiver by Agency of any default, breach or non-compliance under these Terms shall not operate as a waiver of Agency’s rights under these Terms in respect of any continuing or subsequent default, breach or non-observance (whether of the same or any other nature). Severability. Any provision of these Terms that is prohibited or unenforceable in any jurisdiction, or as applied to any person or circumstance, shall, as to that jurisdiction or application, be ineffective to the extent of the prohibition or unenforceability and shall be severed from the balance of these Terms, all without affecting the remaining provisions of these Terms or affecting the validity or enforceability of such provision in any other jurisdiction, or as applied to any other person or circumstance.

16. COVID-19. The Client and Agency acknowledge that, at present, there is a COVID-19 pandemic which may have an adverse effect on the ability of Agency and/or any production company or other third party involved in the creation or production of Deliverables hereunder (“Production Company”) to perform its obligations, in circumstances which are outside their control. Client specifically acknowledges and agrees that the insurance policies obtained by Agency and Production Company will not provide cover for costs or liabilities that relate to COVID-19, and so the Client will need to bear responsibility for such costs.  In furtherance and not in limitation of the foregoing, in the event that, as a direct result of the COVID-19 pandemic, it becomes necessary to relocate, delay, postpone, or cancel the production, or to make material changes to the nature of the production (including but not limited due to governmental or relevant health organization advisories, guidance, or restrictions; or shutdown of travel; or a key person in the production having COVID-19 symptoms and thus being required to self-isolate or being unable to perform their duties): (a)  Agency shall not be in breach of this Agreement, or liable for any delays, costs or damages associated with any such event; (b) in the event of a postponement, delay, relocation or material change to the production, Agency shall be entitled to recover from the Client and the Client shall pay to Agency in accordance with s.10 above such unavoidable costs incurred by the Agency and/or Production Company which are directly attributable to such relocation or postponement or material changes, and any other costs (including other third party costs) incurred by Agency, including by way of example only, talent fees (in addition to any fees or costs payable under the provisions above); and (c) in the event of the cancellation of the production, Agency shall be entitled to recover from the Client and the Client shall pay to Agency in accordance with s.10 above (i) an amount in respect of work performed by the Production Company up to the date of the notice of cancellation, together with any unavoidable costs actually and already incurred by the Production Company (and including an amount in respect of the Director’s fee and the Producer’s fee); and(ii) any other costs (including other third party costs) incurred by Agency, including by way of example only, talent fees (in addition to any fees or costs payable under the provisions above).