Terms & Conditions

Power Surge Marketing Inc.

(“Power Surge”)

The following terms (“Terms & Conditions) form part of all contracts for services performed by Power Surge under all contracts between Power Surge and the Customer commencing on or after October 1, 2019 (“Contract”), unless other terms are agreed to in writing between Power Surge and the Customer. 

  1. Changes to Services. The Customer may, with Power Surge’s prior written consent, modify the nature and extent of the Services at any time.
  2. Performances of Services. In performing the Services set forth in the Agreement, Power Surge shall:
    1. perform any other duties reasonably ancillary to the Services; and 
    2. throughout the Term, devote the time and attention to the Business required to deliver the Services in a professional and timely manner;
  3. Compliance with Laws. Power Surge shall comply with all laws arising out of or connected with the performance of the Services. 
  4. Status. Nothing contained in this Agreement creates a partnership, joint venture, employer/employee, principal-and-agent, or any similar relationship between the parties.
  5. No Authority. Power Surge has no authority to, and will not:
    1. act as agent for or on behalf of the Customer or represent or bind it in any manner;
    2. solicit any orders for the Customer;
    3. contact any customer or supplier of the Customer without prior consent; or
    4. enter into any contract or commitment in the name of or on behalf of the Customer.
  6. Provision of Services. The Services will be provided in the manner deemed most effective by Power Surge and the Customer will not direct the means by which Power Surge will perform those Services.
  7. Conflict of Interest. The parties acknowledge: 
    1. Disclosure. They have discussed potential and known conflicts of interest as of the Effective Date. 
    2. Current or Prior Conflict of Interest. Power Surge may have business, professional, personal, or other interests, including, but not limited to, the representation of other clients, that could conflict with the performance of its obligations under this Agreement. Power Surge, in its  sole discretion, will make determinations as to the nature and extent of the potential conflict and whether PSM will provide the Services.
    3. Notice of Potential Conflict. If any such actual or potential conflict of interest arises under this Agreement, Power Surge shall immediately inform the Customer in writing of such conflict.
    4. Material Conflict. If, in the reasonable judgment of the Customer such conflict poses a material conflict to and with the performance of Power Surge’s obligations under this Agreement, then the parties will mutually agree on a course of action. 
  8. Customer Testimonials.  If the Customer provides Power Surge with any form of testimonial regarding the Services Power Surge has provided, the Customer agrees to also provide Power Surge with an irrevocable and perpetual license to use the Customer’s name, likeness and the testimonial for Power Surge’s own marketing purposes. 
  9. Mutual Representations. Each party represents that:
    1. Legally Binding. This Agreement is legally binding upon it, enforceable in accordance with its terms, except as limited by:
      1. applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other laws of general application relating to or affecting the enforcement of creditors’ rights generally; or 
      2. laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. 
    2. Organized. It is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation and has all requisite corporate power and authority to carry out its business as presently conducted and as proposed to be conducted.
    3. Authorized. It is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the Person or Persons executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate action.
  10. Indemnity. Power Surge shall indemnify the Customer from all Claims that the Customer or its officers, employees or contractors may suffer because of any negligence in the performance or non-performance of this Agreement.
  11. Customer Indemnity. Customer shall indemnify Power Surge from all claims and losses that Power Surge or its officers, employees or contractors may suffer because of Customer’s negligence, willful misconduct, or fraud.
  12. Exception to Indemnity. 
    1. The Customer is responsible for ensuring all marketing materials it provides to Power Surge and all outbound marketing materials are in accordance with local, provincial and federal laws. 
    2. Power Surge will not be responsible for any Claims arising out of the marketing materials provided by the Customer or produced by Power Surge, after receiving written or verbal consent from the Customer to use such marketing materials.
  13. Notice and Failure to Notify
    1. Notice Requirement. Before bringing a claim for indemnification, the each Party (as an indemnified Party) shall:
    1. notify the indemnifying Party of the indemnifiable proceeding; and
    2. deliver to the indemnifying Party all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding.
  1. Failure to Notify. If the indemnified Party fails to notify the indemnifying Party of the indemnifiable proceeding, the indemnifying Party will be relieved of its indemnification obligations to the extent it was prejudiced by the indemnified Party’s failure.
    1.  
  1. Governing Law. This Agreement is governed by and is to be construed in accordance with the laws of the Province of Alberta. All legal action relating to this Agreement must be brought before the courts of Alberta and each party submits to the exclusive jurisdiction of such courts.
  2. Time. Time is of the essence of this Agreement.
  3. Entire agreement. Each Contract and these Terms & Conditions represent the entire agreement between the parties. They cannot be changed except by written agreement signed by the parties.
  4. Binding Agreement. This Agreement binds and benefits each of the parties, including their respective successors and permitted assigns.
  5. Assignment. Power Surge may not assign any rights or delegate any obligations under this Agreement.  The Customer may assign its rights and obligations under this Agreement:
    1. to any Affiliate; or
    2. relating to any sale, transfer, or other disposition of all or substantially all its business or assets but only if the assignee assumes all of the Customer’s rights and obligations under this Agreement.
  6. Waiver.  A party’s failure or neglect to enforce any of rights under this Agreement will not be deemed to be a waiver of that party’s rights.
  7. Third party Beneficiaries. The indemnification terms of this Agreement confer rights and remedies upon Customer’s directors, officers, and employees, shareholders, partners, agents or Affiliates. No Person other than the parties themselves and those beneficiaries has any rights or remedies under this Agreement.
  8. Acknowledgement of Contract Terms. The Customer acknowledges that:
    1. they understand this Agreement was prepared by Power Surge; 
    2. they have read this Agreement;
    3. they understand its terms;
    4. they had the opportunity to consult independent legal counsel; and
    5. they have signed this Agreement voluntarily.
  9. Expiry of Time Period. In this Agreement, if any period ends on a day other than a Business Day, that period will be extended to the next following Business Day.
  10. Further Assurances. The parties shall sign and deliver to each other such further instruments and assurances and do such further acts as may be required to give effect to this Agreement.
  11. Severability.  If a court for any reason holds a provision of this Agreement to be unenforceable, the rest remains fully enforceable.  
  12. Remedies Cumulative. The rights and remedies available to a party under this Agreement are cumulative and in addition to, not exclusive of or in substitution for, any rights or remedies otherwise available to that party.
  13. Currency. In this Agreement, unless specified otherwise, reference to dollar amounts or “$” are to US dollars.

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