The following are the terms and conditions governing the provision of the Trend Hunter Services ("Services") by Trend Hunter Inc. ("Trend Hunter") to Company (collectively the "Parties")(the "Terms and Conditions") referenced in the Trend Hunter Services Statement of Work (the "Services Statement of Work"). Together, the Services Statement of Work and these Terms and Conditions (collectively the "Services Agreement") shall govern the performance of Trend Hunter and the Company, as described further in this Services Agreement. Capitalized terms not otherwise defined in these Terms and Conditions shall have the meanings ascribed to them in the Services Statement of Work. Note this Services Agreement is the basis for determining the price charged for the Services. Modification of terms will result in different pricing.
1. Definitions. Capitalized terms not otherwise defined in these Terms and Conditions shall have the meanings ascribed to them in the Services Statement of Work. For the purposes of these Terms: "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such Person. "Agreement" means the Services Statement of Work, these Terms as well as any additional schedules, statements of work, order forms, quotations and all documents supplementing, amending or confirming the Agreement. “Services” means the Advisory Plan, Services or Deliverables selected by the Company on the Services Statement of Work. "Reports" means as part of the Advisory Service, the provision of certain reports to Company, and may include monthly topic reports and the trend reports archive, which shall be delivered in the form and frequency indicated in the Schedule. “Trend Hunter GPT or TH GPT” means the use of or access to Trend Hunter’s trend report and product idea generator. "Schedule" means any schedule to the Services Statement of Work. "Term" means for Services, the term set out on the Services Statement of Work and for the Advisory Service, the initial service term identified on the Services Statement of Work (the "Initial Term") and any extension or renewal term. "Mark" means any trademark, trade name, service mark, design, logo, domain name, or other indicator of the source or origin of any product or service. "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity. "Trend Hunter Marks" means those Marks belonging to Trend Hunter. "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
2. Fees and Payment. Service Fees ("Fees") are set out in the Services Statement of Work and are payable by the Company as set out in the Services Statement of Work, and in the case of an Advisory Service, annually thereafter on the anniversary date of the Effective Date, unless terminated in accordance with section 8 below. Trend Hunter shall send an invoice for the Advisory Service Fees to the Company accordingly on an annual basis Fees are due and payable within thirty (30) days of receipt of invoice. Payment of Fees must be received in accordance with the Services Statement of Work to secure the Services and Deliverables.
3. Ownership and Grant of Limited License. Trend Hunter is the owner of all right, title and interest in and to the copyright and all other Intellectual Property rights in all material prepared for Company as part of the Deliverables or through the Advisory Service or in the Reports or Trend Hunter GPT. Trend Hunter hereby grants the Company a limited, revocable, non-exclusive, non-transferrable, non-sublicensable license to all material provided by Trend Hunter to the Company, including, where applicable, access to the Advisory Service, the Reports and Trend Hunter GPT. Company will not: (i) rent, lease, sell, assign or otherwise transfer rights in or to the Advisory Service or the Reports, or Trend Hunter GPT, or materials which form part of Deliverables; or (ii) remove any proprietary notices, labels or the Trend Hunter Marks on the Reports or materials which form part of the Deliverables. Company will use the Advisory Service, Reports, and Trend Hunter GPT solely for Company's own internal use by the Company in the country listed in the address in the Services Statement of Work, will not make the Advisory Service or Trend Hunter GPT available for timesharing, application service provider or service bureau use or to Affiliates or any third parties or contractors, or otherwise use the Advisory Services except as authorized herein. Trend Hunter reserves all rights not expressly granted to Company. Company may present materials of Trend Hunter in internal presentations to outside companies but shall not distribute any of those materials to third parties.
3.1. Ownership in relation to Trend Hunter GPT. Company is granted the freedom to utilize any product ideas generated through TH GPT. However, it is expressly acknowledged that such ideas may not be exclusive to the Company and may be generated for similar queries from other parties. The ownership of the output, particularly concerning ideas originating from the tool and subsequently materializing into tangible products, is not intended to be claimed by Trend Hunter.
4. Confidentiality. "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential", disclosed orally and, within five business days, reduced to writing and marked "confidential" or any information disclosed by one party that pertains to confidential business, brand intentions/directions, marketing, financial or technical information (even if not marked as "confidential"). Confidential Information does not include information (a) already in possession of receiving party without an obligation of confidentiality; (b) hereafter rightfully furnished to receiving party by a third party without a breach of any separate nondisclosure obligation; (c) publicly available without breach of this agreement (e.g. information in the public domain; (d) furnished by the disclosing party to a third party without restriction on subsequent disclosure; or (e) independently developed by received party without reliance on the Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order, in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Each party shall use a reasonable degree of care to protect the other party's Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such, provided, however, either party will not be required to destroy Confidential Information stored in back-up systems except in the ordinary course of its business and such party's records retention policies.
4.1. Trend Hunter GPT User Data. Trend Hunter does not use Company data to train TH GPT in any way. TH GPT makes use of Large Language Models which have been pre-trained on data and enhances that knowledge base with the contents of our proprietary trend database. Trend Hunter stores user data for tracking, analytics, and debugging purposes only. Company input is not used to automatically enhance the product in any capacity.
5. Indemnification. Both Trend Hunter and Company shall indemnify, hold harmless and defend the other and its wholly owned subsidiaries and Affiliates (including their respective directors, employees, officers and agents) against any and all third-party claims, and all related liabilities incurred arising out of or relating to (i) a breach of any term or condition of this Agreement, (ii) improper of unauthorized use of the Advisory Service, the Reports, Trend Hunter GPT, or other Deliverables by Company or (iii) violations of applicable laws, rules or regulations. The indemnifying party reserves the right, at its own expense, to assume the exclusive defence and control of any matter subject to indemnification. The provision in this Section 5 shall survive termination or expiration of this Agreement.
6. Insurance. Trend Hunter will obtain and maintain in full force during the Term at its own cost and expense, insurance coverage customary for Trend Hunter's scope of services and sufficient to protect Trend Hunter against reasonably foreseeable losses in its performance hereunder, but in any event not less than: a) $1,000,000 CAD per occurrence in commercial general liability including bodily injury and property damage and b) $1,000,000 CAD per occurrence professional liability (including professional errors and omission, cybercrime and theft). Such insurance shall be maintained in force for not less than 1 year following the termination of this agreement.
7. Disclaimer of Warranties. The information and services included in or available through the Advisory Service, may include inaccuracies or typographical errors. Trend Hunter may make improvements and/or changes in the Advisory Service or Reports or Trend Hunter GPT at any time, with or without notice. Trend Hunter does not represent or warrant that the Advisory Service or Trend Hunter GPT will be provided uninterrupted or error-free, or that defects will be corrected. The Advisory Service, Reports, Trend Hunter GPT and Deliverables are provided "as is" and there are no warranties, claims or representations made by Trend Hunter and/or its subsidiaries and Affiliates, either express, implied or statutory with respect to the Advisory Service, Reports, Trend Hunter GPT or Deliverables, including warranties of quality, performance, non-infringement, merchantability, or fitness for a particular purpose. Trend Hunter does not warrant that the Advisory Service, Reports, Trend Hunter GPT or Deliverables will meet the Company's needs or be free from errors. The foregoing exclusions and disclaimers are an essential part of the agreement and formed the basis for determining the price charged for the Advisory Service.
8. Limitation of Liability. Limitation of Liability. Neither party or its Affiliates will be liable to the other party for any indirect, special, punitive, consequential (including, without limitation, lost profits), or incidental damages, whether based on a claim of contract, warranty, negligence, strict liability, or other tort, breach of any statutory duty, indemnity or contribution, or otherwise, even if the party and/or its Affiliates have been advised of the possibility of such damages. Trend Hunter's total cumulative liability to Company for any direct loss of damages resulting from any claims, demands or actions arising out of or relating to this Agreement shall not exceed the value of the Fees.
9. Term and Non-Binding Renewal (for Advisory Service). The Term of this Agreement commences on the Effective Date for the Initial Term. Provided the Company is not in default hereunder, the Agreement will be automatically renewed for successive one-year terms (each a "Renewal Term") subject to Company's right to cancel by providing written notice to Trend Hunter of cancellation at least thirty (30) days prior to the end of the then current term. These same Terms will remain in effect upon renewal, except that Trend Hunter may increase the Fees by up to 10% percent annually for any renewal term. Company may terminate this Agreement and the provision of the Pro Service at any time for any reason, however, no refund of Fees will be payable by Trend Hunter. Trend Hunter may cancel service at any time for any reason, refunding proportionate Fees for unused services payable to Company. Term and termination for Services other that Pro Service are as set on in the Statement of Work.
10. Default. Company shall be in default of this Agreement in the event that it fails to pay any invoice when due or fails to comply with any other term of this Agreement.
11. Non-Solicitation of Employees. Company agrees not to directly or indirectly recruit, solicit, or otherwise attempt to employ Trend Hunter employees for a period of two (2) years post-employment with Trend Hunter. Trend Hunter agrees not to directly or indirectly recruit, solicit or otherwise attempt to employ Company employees for a period of two (2) years post-employment to Company.
12. No Exclusivity. This is not an exclusive agreement. The Company agrees that nothing herein shall prevent Trend Hunter from providing services to other companies or organizations including competitors or potential competitors of Company.
13. Miscellaneous. Each party will be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Services Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between the Parties concerning its subject matter and supersedes all prior agreements and representations between the parties. If any provision of this Services Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the Province of Ontario without reference to its conflict of law principles. Each Party agrees to submit to the exclusive and personal jurisdiction of the courts located in Toronto, Ontario. A waiver of any default is not a waiver of any subsequent default. The relationship between Trend Hunter and Company is not one of a legal partnership relationship but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. The provisions of this Section 10 shall survive the termination or expiration of this Agreement.
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