1. Introduction

Please read these Terms of Use (these “Terms”) carefully as they govern your use, access and/or purchase of AsteroidX’s personalized services, including all of our websites and software applications that incorporate or link to these Terms (collectively, the “Professional Services”) 

These Terms govern the user’s (“Company”, “you”, or “your”) use of the websites, platform, applications and software owned and/or operated by AsteroidX Inc. (“Agency”, “we”, “us” or “our”), to which these Terms are linked or referenced to.

For the purposes of these Terms, Company and Agency may be referred to herein individually as a “party” and collectively as the “parties”.

By signing up for, or otherwise using, the Professional Services, you agree to these Terms. If you do not agree to these Terms, then you must not use the Professional Services.

Any new features or tools which are added to the current store shall also be subject to the Terms of Service. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.

2. Professional Services

Agency agrees to provide the Company with the personalized Professional Services outlined before the order confirmation. Company shall (a) provide Agency with accurate and complete information and timely decisions and approvals, upon which Agency will be entitled to rely; (b) procure any necessary permits, licenses and consents required for Agency to perform the Professional Services. Agency shall not be liable for (i) any work done by any parties not engaged by Agency, including contractors hired by Company; or (ii) any materials not supplied by Agency. Agency shall have sole discretion in staffing the Professional Services and may assign the performance of any portion of the Professional Services to any subcontractor, without notice to Company; provided that Agency shall be responsible for the performance of any such subcontractor.

3. Fees and Payment

3.1 Fees. Company shall pay all fees and other charges for the Professional Services. All Fees are final, non-refundable, and not a guarantee of results. Without limiting the foregoing, to the extent Company fails to comply with any of its obligations in this Agreement or any Statement of Work, and such failure results in an actual delay in Agency’s ability to perform the Professional Services or the necessity to modify the scope of any Professional Services, Company acknowledges that Agency may not be able to reallocate personnel and resources from the performance of Professional Services for Company to other projects. In the event that Agency does reallocate its personnel and resources to other projects, Company acknowledges there may be a delay before Agency can resume the performance of Professional Services.

3.2 Payment Terms. Agency will bill Company monthly in advance. Company shall pay all amounts due by credit card. Company will provide Agency with valid and current credit card information (using a credit card issued in the name of Company), and Company hereby authorizes Agency to charge such payment method monthly for all Fees and any interest or other fees permitted hereunder. Charges will begin on the date of the order confirmation. If Company’s payment is declined, dishonoured, returned, or otherwise unsuccessful, Company authorizes Agency to reattempt the charge within the next 30 days or until payment is successfully received. Company is responsible for providing complete and accurate billing and contact information to Agency and notifying Agency of any changes to such information. Each party shall be responsible for any taxes imposed on such party under applicable law in connection with the transactions contemplated by this Agreement.

3.3 Budget. Agency shall use commercially reasonable efforts to remain within any budget agreed to by the parties for advertising expenditure; provided that Company acknowledges that any such budget is an estimate only, and the parties share the responsibility of monitoring any budget agreed to by the parties and ensuring that it is appropriate for Company’s needs.

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4. Ownership of Deliverables

As between the parties, Company shall own, and Agency hereby assigns, all right, title, and interest in and to all Deliverables created exclusively for Company hereunder. Company acknowledges that Agency may have developed materials prior to entering into this Agreement, and may own or develop other intellectual property rights, techniques, and concepts that were not conceived or first produced by Agency in the performance of Professional Services for Company (collectively “Agency Intellectual Property”). Agency Intellectual Property is proprietary to Agency and shall remain Agency’s exclusive property. Agency hereby grants to Company a nonexclusive, royalty-free, non-transferable (except pursuant to Section 9.1), sub-licensable, perpetual license to use such Agency Intellectual Property solely for its own internal use in connection with the intended use of the Services. Advertising Campaigns created by Agency remain Intellectual Property of Agency, and will be archived in the event of cancellation of Professional Services. To the extent that any Professional Services include third-party materials, all right, title, and interest in and to such materials will remain with the respective owners thereof, subject to any express licenses or sub-licenses granted to Company pursuant to or in accordance with this Agreement.

5. Confidentiality

Except as expressly permitted under this Agreement, Agency, and Company each agree to (a) hold the other party’s Confidential Information received or otherwise obtained in strict confidence; (b) not disclose such Confidential Information to any third party; and (c) not use such Confidential Information other than in the performance and scope of this Agreement, in each case without the consent of the other. Notwithstanding the foregoing, neither party is restricted from disclosing any Confidential Information that is required to be disclosed by law or any governmental authority; provided that the receiving party shall notify the disclosing party as soon as reasonably possible of any such compelled disclosure (if not prohibited by law); give the disclosing party the opportunity to defend against such disclosure or obtain a protective order in connection therewith; and disclose only that information which is legally required to be disclosed. Notwithstanding the foregoing, Agency may disclose Confidential Information received from Company to its employees, consultants, subcontractors, and advisors who or which are involved in providing the Services hereunder and have a need to know such Confidential Information in order to carry out their responsibilities. Each party to this Agreement acknowledges and agrees to the tape recording of conversations between the parties to this Agreement. Recording of Conversations. Each party hereto consents to the recording of its telephone conversations relating to this Agreement or any potential Transaction. “All calls will be recorded for record-keeping, quality assurance, and training purposes.”

6. Warranties, Exclusive Remedies and Disclaimers

6.1 Mutual Warranties. Each party represents, warrants, and covenants to the other party that: (a) it is a company duly organized, validly existing, and in good standing in its respective jurisdiction of organization; (b) the execution and delivery of this Agreement and the transactions contemplated hereby have been duly and validly authorized by all necessary action on the part of such party; (c) this Agreement constitutes a valid and binding obligation of such party that is enforceable in accordance with its terms; (d) the entry into and performance of this Agreement by such party does not and will not conflict with any other agreement or other obligation to which such party is a party; and (e) the person executing this Agreement on behalf of such party is duly authorized and has full authority to execute and deliver this Agreement.

6.2 Company Acknowledgement. Company acknowledges that (a) Agency does not warrant or guarantee the results of any business activity of Company undertaken based on the Services, including the results of any marketing campaign or strategy; (b) Agency is not responsible for Company, or its employees or any other party, making a decision or taking action based on recommendations or information provided by Agency; and (c) decisions by Company relating to recommendations or information provided by Agency are solely those of Company.

6.3 Disclaimer. THE SERVICES ARE PROVIDED “AS-IS” AND “WHERE-IS”, AND AGENCY MAKES NO OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, TO COMPANY OR ANY OTHER PERSON OR ENTITY AND EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL SUCH IMPLIED OR STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, INCLUDING THOSE AS TO THE ACCURACY, SECURITY, RELIABILITY, PERFORMANCE, RESULTS, TIMELINESS, COMPLETENESS, TITLE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE PROFESSIONAL SERVICES, PLATFORM, DELIVERABLES, OR ANY INFORMATION PROVIDED IN CONNECTION THEREWITH, OR ANY MARKETING DECISIONS MADE BY COMPANY IN CONNECTION WITH THE USE OF THE SERVICES OR OTHERWISE. AGENCY DOES NOT WARRANT THAT THE PLATFORM WILL ALWAYS BE AVAILABLE OR ERROR-FREE, AND MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINED FROM USE OF THE SERVICES.

7. Limitation of Liability

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE AMOUNT PAID BY COMPANY HEREUNDER IN THE MONTH PRECEDING THE INCIDENT THAT GAVE RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, NO LIMITATION OR RESTRICTION ON LIABILITY SET FORTH HEREIN SHALL ALTER OR REDUCE COMPANY’S PAYMENT OBLIGATIONS TO AGENCY FOR SERVICES PERFORMED.

8. Term and Termination

Either party may terminate this Agreement at any time during the Term if the other party breaches any material provision of the Agreement and does not cure such breach within 7 days after receiving notice thereof from the non-breaching party. Upon termination of this Agreement, (a) Company shall immediately pay all amounts due or payable to Agency as of the effective date of termination; (b) Agency shall archive new digital Advertising Campaigns created by Agency during the course of Professional Services (c) Agency shall have the right, but not the obligation, to destroy or retain a copy for archival purposes of all Company Data submitted by Company; (d), upon the other party’s request, each party shall return or destroy the other party’s Confidential Information; and (e) Sections 1, 3.3, 4, 5, 6.2, 6.3, 7, 8, and 9 shall survive any termination of this Agreement. In no event shall any termination relieve Company of the obligation to pay any fees payable to Agency for the period prior to the effective date of termination. Termination of this Agreement shall not prejudice any other remedy to which the terminating party may be entitled, under law or equity.‌

9. General Provisions

9.1 Assignment. Neither party may assign this Agreement or delegate its performance under this Agreement to any third party without obtaining the other party’s prior consent, except that either party may assign this Agreement in its entirety to (a) its affiliate; or (b) any successor entity in the event of such party’s transfer of all or substantially all of its assets or stock, merger, spin-off, consolidation, reorganization, or other business combination or change of control, so long as the assigning party provides notice thereof to the other party. Any purported assignment of rights in violation of this Section is void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties, their successors, and their permitted assigns.

9.2 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of Ontario, other than such laws, rules, regulations, and case law that would result in the application of the laws of a jurisdiction other than the Province of Ontario. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the Province of Ontario or, if such court would not have jurisdiction over the matter, then only in an Ontario state court sitting in Toronto, Ontario. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM BROUGHT UNDER OR IN RELATION TO THIS AGREEMENT AND ITS INTERPRETATION. 

9.3 Publicity. Company agrees that Agency may (a) refer to Company as a client of Agency on its website and in any promotional or marketing materials, press releases, case studies, or other publicity; (b) promote its relationship with Company in its blogs and via social media; and (c) use and display Company’s logo and campaign data in connection with the foregoing. Company hereby grants to Agency a nonexclusive, royalty-free, sub-licensable, perpetual, irrevocable license to use and display Company’s trademarks and logos in connection with the foregoing, in accordance with any style guides or other branding requirements delivered to Agency in writing. Agency agrees that its use of Company’s trademarks and logos shall be commensurate with the high quality of goods and services currently offered by Company. Upon Agency’s reasonable request from time to time, Company shall cooperate with Agency to provide quotes or testimonials associated therewith.

9.4 Force Majeure. If the performance of this Agreement, or any obligation hereunder, except the making of payments hereunder, is prevented or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party (“Force Majeure”), the party so affected shall be excused from such performance to the extent of such prevention or interference; provided the party so affected promptly exercises commercially reasonable efforts to overcome or cure the Force Majeure to the extent within its power to effect such cure and gives prompt notice to the other party upon discovery of such Force Majeure.

9.5 Non-Solicitation. During the Term and for a period of two years after termination of this Agreement for any reason, Company shall not recruit, solicit, negotiate with, or offer employment, directly or indirectly, to any Agency employees or contractors unless previously authorized in writing by Agency. In the event Company does so hire or contract with any such employee or contractor in any capacity, Company agrees to pay Agency as liquidated damages and not a penalty, a fee equal to such person’s annualized salary or contracted fee for one year. 

9.6 Miscellaneous. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, fiduciary, or employment relationship between the parties. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power, or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The Agreement, together with the Exhibit hereto, which are incorporated into this Agreement by this reference, constitutes the complete and entire statement of all conditions and representations of the Agreement between Agency and Company with respect to its subject matter and supersedes all prior writings and understandings. Any waivers or amendments to this Agreement shall be effective only if made in writing and signed by a representative of the respective parties authorized to bind the parties. This Agreement may be executed in counterparts, including by electronic means, which, taken together, shall form one legal instrument. For purposes of this Agreement, (a) the singular includes the plural and vice versa; (b) “including” and correlative terms means including without limiting the generality of any description preceding such term; (c) the term “or” is not exclusive; (d) the phrase “this Agreement” and the terms “hereof,” “herein,” “hereby,” “hereunder,” and derivatives or similar words refer to this entire Agreement; (e) headings are for convenience only and do not constitute a part of this Agreement; and (f) all references to money shall be in United States dollars, except if clearly stated.

EXHIBIT A – Definitions

“Confidential Information” means, with respect to either party, any information, in whatever form, concerning the organization, business, technology, or finances of such party, except for any information that the receiving party can show through documentary evidence: (a) at the time of disclosure, is, or later becomes, part of the public domain without fault of the disclosing party; (b) is rightfully obtained by either party independent from a disclosure made pursuant to or in connection with this Agreement and without a restriction on further disclosure; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; or (d) is independently developed by the receiving party without reference to the Confidential Information of the disclosing party. Confidential Information of Company shall include all Company Data.‌

“Deliverables” means all documents, work product, and other materials that are delivered to Company hereunder or prepared by or on behalf of Agency in the course of performing the Professional Services (as defined in Section 2).