Terms & Conditions
Note: For the purpose of these Terms and Conditions, PowerBoot Web Solutions (the service provider) shall herein be referred to as “PowerBoot” and the terms “Client” and “Customer” shall mean the organization or individual with which an agreement to provide service to has been entered into.
- Definitions. Capitalized terms used but not defined herein shall have the meanings given to them in the General T&Cs, capitalized terms defined in the body of these Digital Digital Marketing Services Terms & Conditions will have the meanings given to them therein, and the following terms have the meanings given to them below.
“Analytics Data” means information, statistics analysis and other data about the performance of the Digital Marketing Services and related Campaigns, including data about how users interact with and respond to the Digital Marketing Services.
“Campaign” means Customer’s marketing campaign for its products and services.
“Campaign Period” has the meaning given to it in Section 3.1 below.
“Custom Work Product” means Work Product that the parties agree will be developed for Customer specifically as a “work-for-hire” and the parties shall enter into a separate Statement of Work in relation to such Custom Work Product to set out the applicable deliverables, development fees and Customer’s license rights to such Custom Work Product.
“Customer Data” has the meaning given to it in Section 6.2 below.
“Customer Site” means any website owned and operated by Customer.
“Hosted Site” means any website, mobile optimized website, or e-commerce website (other than a Real Estate site) developed and hosted by PowerBoot, for Customer’s use, during the Term of this Agreement.
“Digital Marketing Services” or “DMS” means the digital Digital Marketing Services to be provided by PowerBoot to Customer as more particularly set out in Section 2.2 below.
“Platform” means the Third-Party Supplier web-based marketing platform through which PowerBoot makes certain Digital Marketing Services available to Customer.
“Service Specifications” means any additional service descriptions and/or policies which are posted on the website: https://www.powerboot.ca/general-terms-conditions/ (or such other address specified by PowerBoot from time to time) which are applicable to the Digital Marketing Services specified in the Service Order, including any documentation, hosting, support, security and Terms of Service.
“Start Date” means the date specified in the Service Order for each Marketing Service upon which date such Digital Marketing Services shall commence.
“Terms of Service” means PowerBoot’s terms of service for website use located at https://www.canada.com/aboutus/termsofservice.html as amended from time to time.
“Third Party Content” has the meaning given to it in Section 4.3 below.
“Third Party Technology” has the meaning given to it in Section 4.1 below.
“Work Product” means any products or deliverables created by PowerBoot as part of the Digital Marketing Services and licensed to Customer during the Term.
- For purposes of this Agreement, all references to “days” will be measured in calendar days unless otherwise noted. A “business day” refers to any day except a Saturday, Sunday or nationally recognized Canadian holiday.
- PowerBoot shall provide the Digital Marketing Services to Customer in accordance with the terms of the Agreement during the Term.
- The Digital Marketing Services may include, but are not limited to, individual provision of, or a combination of, or a modification of, the following:
If Customer purchases Search Engine Digital Marketing Services (“SEM”), Customer may opt-in to receive Call Tracking Services. The services involve deploying a unique temporary phone number to a Campaign (e.g. a series of advertisements) in order to measure the traffic generated by the Campaign. If Customer elects to receive this service, then in addition to this Agreement, Customer is thereby agreeing to the Third-Party Supplier’s terms of service, including without limitation, those located at this link: https://www.telmetrics.com/pdfs/Web2TelTerms.pdf.
Campaign Landing Page(s)
This service includes the development and hosting of a temporary landing page for Customer’s Campaign(s).
This service includes the design and management of paid ads for Customer on Facebook. This service may require an ad spend limit to be defined in the Service Order.
This service is PowerBoot’s local listing service where PowerBoot will distribute updated business contact information to multiple data sources. This service is also called “List Optimization.”
Live Chat Leads
This service enables Customer to place a Live Chat box on the Customer Site or the Hosted Site (during the Term of the Agreement) through which PowerBoot can answer online chats and collect business leads on Customer’s behalf.
Local Search Optimization (“LSO”)
This service aims to ensure that accurate business information is syndicated across selected online properties in order to increase the opportunity for businesses to be found through search engines and online directories. This service includes Listing Management otherwise known as List Optimization. The Customer will be provided various directory management services, where the listing information will be syndicated. Some services also include Review Monitoring.
Mobile Optimized Website Design and Hosting
This service is PowerBoot’s mobile optimization product, where PowerBoot creates, designs and hosts mobile companion sites for the Customer.
Real Estate Website Design and Hosting (“Real Estate Site”)
This service is PowerBoot’s website creation service for real estate agents where PowerBoot creates, designs, and hosts a website (the “Real Estate Site”) for Customer during the Term, and provides access to a database of real estate listings and related information (“Listing Content”) to publish on the Real Estate Site.
This service is PowerBoot’s reputation monitoring service, where PowerBoot will provide Customer with access to an online reputation monitoring system.
Responsive Website Design and Hosting
This service is PowerBoot’s website creation service, where PowerBoot creates, designs, and hosts a website (the “Hosted Site”) for Customer during the Term, and provides access to a content management system to publish content on the Hosted Site.
This service provides a dashboard to view and respond to reviews from specific directory sites.
Search Engine Marketing (“SEM”)/Google Ad Words
This service (also known as Pay per Click advertising) is the process of gaining targeted website traffic by purchasing ads on search engines. PowerBoot will consult, set up and run a SEM marketing campaign through Google AdWords and other search engines. This service is further described in Section 15 below. If Customer purchases Search Engine Digital Marketing Services, it may also opt to receive Call Tracking Services.
Search Engine Optimization (“SEO”)
This service is PowerBoot’s Search Engine Optimization product, where PowerBoot will work with the Customer to improve their Hosted Site or Customer Site’s organic ranking and traffic for chosen areas of business focus on search engines.
This service promotes and amplifies Customer’s online social media profiles. PowerBoot will post, tweet and share content from Customer’s social media accounts.
This service provides for the creation of two (2) or more social profiles for Customer from the following social media platforms: Twitter; Facebook; YouTube; or LinkedIn.
This is PowerBoot’s suite of digital presence and social media creation, management and advertising products and services which includes: 1) Facebook Advertising; 2) Social Creation; 3) Social Conversations; and 4) Social Suite.
This service enables Customer to manage its own social media accounts (Facebook, LinkedIn, Twitter and Google+) through a self-serve Platform.
This service tracks Analytics in relation to the performance of a Campaign.
- New and Additional Services. As PowerBoot adds additional products and services to its portfolio, such products and services will be referenced in the Service Order and any additional terms and conditions will be either posted online or provided to Customer, in each case such additional terms and conditions shall be deemed incorporated by reference into and made part of this Agreement.
- All services are provided on a monthly subscription-based service, with the exception of ad campaign funds provided as part of PPC campaigns. Fees for services are due and payable prior to any work being performed by PowerBoot. PPC Ad campaign funds shall be invoiced on a monthly basis.
- Payments are coordinated through PowerBoot’s online invoicing and server management system, and all payments are processed through a payment processor gateway, using a secure connection. No credit card information is retained on PowerBoot servers. By using our credit card payment gateways, Customers are agreeing to abide by the terms of the payment gateway provider, such as PayPal, Stripe, Moneris, etc.
- Payments are processed automatically using the subscription services of the respective gateway. Cancellation of any pre-approved recurring payment subscription shall be considered cancellation by the Customer of services by PowerBoot, and shall terminate current services at the end of the period for which payment was received. In the the Customer cancelled their recurring subscription in error, PowerBoot shall retain all Customer account information and Digital Marketing assets, for a period of up to 90 days, after which the materials and account details may be deleted.
- Funds allocated to Pay-per-click campaigns (Google AdWords, Facebook Ads, Instagram Ads, LinkedIn Ads, etc) shall payable at the start of a campaign request. PowerBoot shall retain the management fee as laid out in our service agreement, and shall apply all remaining funds to ad promotion.
- Set-Up Period.
(a) Campaign Set-Up Period. Customer acknowledges and agrees that, with respect to the Digital Marketing Services, PowerBoot may take up to ten (10) business days or longer to review and prepare the Campaign (or longer, if PowerBoot has been asked to provide creative services or if PowerBoot experiences technical difficulties with Customer’s Campaign or in the event of Force Majeure) and may require further input from Customer before the Campaign is launched (the “Set-Up Period”). Customer further acknowledges and agrees that the Set-Up Period will commence upon PowerBoot’s acceptance of a Service Order executed by Customer.
(b) Set-Up Notice Period. During the Set-Up Period, PowerBoot may send certain deliverables in draft form (the “Proof”) via email to Customer for its review and approval. Customer agrees to provide written notice to PowerBoot either approving or rejecting the Proof (in whole or in part) within five (5) business days from the date of receipt of the Proof (the “Set-Up Notice Period”). PowerBoot may send a gallery of templates (“Gallery”) via email to Customer for its review and selection. Customer agrees to provide written template selection within the Set-Up Notice Period, which is five (5) business days from the date of receipt of the Gallery. Customer acknowledges and agrees that TIME IS OF THE ESSENCE with respect to approving or rejecting the Proof, or selecting a template from the Gallery, within the Set-up Notice Period. If Customer fails to provide written response within the Set-up Notice Period, the Proof will be deemed “approved” by Customer and/or PowerBoot will use its best judgment to select an appropriate template for the Customer.
€ Acceptance. Any deliverables provided by PowerBoot to Customer (including any Work Product and Custom Work Product) shall be deemed accepted on the earlier of: (i) written notice by Customer to PowerBoot of such acceptance; or (ii) Customer’s use of the deliverables.
(d) Go-Live Period. Once the Set-Up Period is done, and the Work Product is completed and ready to “go-live,” certain log-in information or domain name information may be requested from the Customer and is required to “go-live”. If the information has been requested, and a written response is not received in five (5) business days from the request, the Work Product will be deemed fulfilled. If at a future date, the log-in information or domain name information is received from the Customer, the fulfilled Work Product will be made live. For mobile website design, redirect code will be forwarded to the Customer with the instructions on how the Customer can implement the redirect code themselves, and the Work Product will be deemed fulfilled.
€ Delivery of Customer Materials and Creative.
(i) Delivery of Customer Materials. Customer will deliver all Customer Materials required for the Digital Marketing Services to PowerBoot within five (5) days from the execution of the Service Order. If the Customer Materials do not conform to PowerBoot’s specifications, then PowerBoot may, in its sole discretion, modify or reject such Customer Materials to meet PowerBoot’s other technical requirements or to address Campaign performance issues. If rejected, PowerBoot will then refund any applicable amounts paid in advance. Customer acknowledges and agrees that PowerBoot shall not be liable for typographical errors, incorrect insertions or omissions already contained within any of the Customer Materials provided by Customer under this Subsection 3.1€; and
(ii) PowerBoot Creative Services. If Customer requests that PowerBoot create any Work Product or Custom Work Product for Customer, Customer is solely responsible for ensuring that any Customer Materials that it provides to PowerBoot for inclusion within the Work Product is complete, accurate, is non-infringing and complies with applicable law, and liable for any and all claims and damages for failure to do so.
(f) Domain Name Registration. In the event that Customer purchases any Digital Marketing Services which include the development and hosting of a website, mobile optimized website or e-commerce website (“Site”), Customer shall be responsible for:
(i) registering a domain name for the applicable Site which registration shall remain in good standing throughout the Term; and
(ii) the applicable DNS hosting, or, relinquishing the rights to register and manage, in part or in whole, at PowerBoot’s sole discretion, the domain name and related DNS hosting.
(g) Termination Logistics. In addition to any requirements described in Section 5.6 below, immediately following the termination of this Agreement, or any particular Marketing Service, Customer must cease using the Digital Marketing Services and any Work Product provided in connection therewith. Additionally, Customer will be responsible for returning or, at the direction of PowerBoot in its sole discretion, destroying or deleting, any PowerBoot Intellectual Property or other PowerBoot materials related to this Agreement or the particular Marketing Service, as applicable. Without limiting the generality of the foregoing, the following steps must be taken by Customer in respect of the Digital Marketing Services listed below:
(i) Live Chat Leads: Customer must delete any software code installed on the Customer Site that was provided by PowerBoot to facilitate this service.
(ii) Call Tracking: Customer must cease using any telephone numbers assigned to it as part of the call tracking service
- Third-Party Suppliers and Third-Party Technology. Customer acknowledges and agrees that PowerBoot may use one or more Third Party Suppliers to provide some or all of the Platform, technology, content or other products and services used in the provision of the Digital Marketing Services to Customer, including any Work Product and/or Custom Work Product created in connection therewith. Such Third-Party Suppliers may use software or other technology in conjunction with their services (collectively, “Third Party Technology”) and such Third-Party Technology may be subject to additional terms and conditions. To the extent that any Work Product or Custom Work Product contains Third Party Technology, Customer agrees to comply with the applicable Third-Party Supplier’s terms and conditions governing the use of such the Third-Party Technology.
- Third Party Content. Any third-party content made available by PowerBoot (including without limitation all Listing Content) (the “Third Party Content”) is provided on an “as-is” basis and “as available” basis without any warranty of any kind. You acknowledge that PowerBoot is not responsible for, and under no obligation to control, monitor or correct Third Party Content; however, PowerBoot reserves the right to remove, disable or take additional remedial action if any such content contains any Prohibited Content or otherwise violates any other provisions of this Agreement.
- Cessation or Modification of Digital Marketing Services. PowerBoot reserves the right, and Customer acknowledges and agrees, that PowerBoot may cease to provide any or all of the Digital Marketing Services at any time, and PowerBoot will not be responsible to Customer or any other person in any way for any loss or damage of any kind arising in connection with and/or as a result of such discontinuance (a “Discontinuation of Service”). In the event of a Discontinuation of Service, PowerBoot shall provide Customer with notice of same; any un-billed Fees applicable to the Digital Marketing Services that are subject to a Discontinuation of Service shall cease to become due and payable.
- Effect of Termination. Upon termination or expiry of this Agreement for any reason, or in the event of a Discontinuation of Service, the following provisions shall apply:
(a) End of Services. Upon suspension, termination or expiry of this Agreement, PowerBoot shall have no obligation to provide, and Customer shall have no right to access or use, the Digital Marketing Services, including any products or services provided or made available to Customer in respect thereof. PowerBoot’s right to suspend access to or terminate the Digital Marketing Services or this Agreement shall not absolve Customer of any outstanding Fees or indemnification obligations in this Agreement, or diminish any other remedy available to PowerBoot.
(b) Cached Content. Customer acknowledges and agrees that due to the nature of the internet, certain information regarding Customer that will be posted on the internet as part of the Digital Marketing Services, including, for instance, cached versions of pages from Customer websites may continue to be available from the internet following termination of any of the Digital Marketing Services and/or this Agreement. Customer shall be responsible for contacting search engines to have such pages removed.
- If a Customer wishes to cancel their subscription to services from PowerBoot, they may do so using the cancellation options in their client account in the PowerBoot online client centre, or may provide cancellation via written request, to [email protected].
- Refunds shall not be granted for monthly subscription services and any cancelled services shall be ended at the close of the period for which payment was last made.
- License to Work Product. PowerBoot makes no representations or warranties, express or implied, including any warranty of merchantability, non-infringement, accuracy, completeness or fitness for a particular purpose and PowerBoot disclaims any responsibility regarding the accuracy of any Campaign Reporting or the suitability of it for the Customer. Customer’s access to analytical data shall be password protected and Customer agrees that it shall not share its password with third parties or otherwise provide access to the analytical data to third parties. If the security of Customer’s username(s) or password(s) is compromised in any way, or if Customer or its agent suspects that it may be, Customer shall immediately contact PowerBoot. PowerBoot is not responsible for any loss or damage suffered by the compromise of any password. Customer acknowledges and agrees that it does not have, nor will it claim any right, title or interest in the Platform, the Platform software, data, applications, methods of doing business or any elements thereof, or any content provided on the Platform. Customer may only access the analytical data via a web browser or in a manner otherwise approved by PowerBoot. Customer will not attempt in any way to reverse engineer, alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the analytical data. Customer shall not remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included within the Digital Marketing Services. Use of the analytical data may be subject to additional terms and conditions required by a Third-Party Supplier. Additionally, to the extent that the Digital Marketing Services involve the creation of any Work Product, upon execution of a Service Order, Customer will be granted a License to the Work Product specified in the Service Order for the Term of this Agreement. PowerBoot may terminate the foregoing Licenses, at any time and for any reason.
- License to Customer Data. As part of the Campaign initiation process and from time to time during the Campaign, Customer will provide certain information to PowerBoot (the “Customer Data”), which PowerBoot will input into one or more third party web-based marketing platforms. Accordingly, Customer hereby permits PowerBoot to input Customer Data, including, without limitation, Customer contact information, credit card or ACH information and Campaign information, into the Platforms. PowerBoot will only use such information in connection with the fulfillment of the Digital Marketing Services and as otherwise permitted by the Service Order and this Agreement. In addition, PowerBoot may, from time to time, send Customer emails regarding Service updates, Campaign updates, and marketing opportunities relating to PowerBoot and its commercial partners. Customer may opt-out of receiving communications not directly related to the provision of the Digital Marketing Services by PowerBoot.
- Digital Marketing Services, Platform, Work Product and Third-Party Technology. As between Customer and PowerBoot, PowerBoot owns all right, title and interest in and to the Digital Marketing Services, the Platform, the Work Product (excluding any Customer Materials incorporated therein) and the Third Party Technology, including any modifications and derivative works thereto, and any Intellectual Property Rights in and to the same. With specific reference to the Call Tracking Services, and without limiting the generality of the foregoing, Customer does not own any phone number assigned to it during the Term, or otherwise deployed during a Campaign, and Customer shall not include the Campaign phone number in any print or online directory or listing service; such phone number may only be used by Customer during the Term.
- Customer Site, Customer Materials. As between the PowerBoot and Customer, Customer shall own all right, title and interest in and to the Customer Site and the Customer Materials.
- Social Media Accounts. Customer shall own all Social Media Accounts subject to: (i) payment by Customer of all applicable Fees specified in the Service Order; and (ii) its compliance with any terms and conditions of ownership set out in the Service Order and any other applicable terms of this Agreement.
- Analytics Data – PowerBoot shall own all Analytics Data generated by the Digital Marketing Services. Customer may access the Analytics Data during the Term.
- Permission to Access Accounts. If Customer purchases Digital Marketing Services that require PowerBoot to access, create or manage third party accounts on behalf of Customer (each a “Social Media Account”, “Hosting Account”, “Service Account”), by signing the Service Order, Customer consents to PowerBoot creating new Accounts and/or accessing its existing Account(s) during the Term for the sole purpose of providing the Digital Marketing Services. Customer shall provide PowerBoot with full access/administrative rights, including such passwords and other access information (including any updates thereto) as it may reasonably require (“Credentials”) to perform the Digital Marketing Services. If PowerBoot sets up an Account for Customer, subject to payment by Customer of all applicable Fees, upon the expiry or termination of this Agreement, PowerBoot shall provide Customer with all Credentials required to operate the Account going forward.
- Search Engine Digital Marketing Services (“SEM Services”). If purchased through an Service Order, PowerBoot will provide Customer with the SEM Services described in this Section 10.1. Customer hereby appoints PowerBoot as its representative for the purpose of performing the SEM Services, including the operation and/or creation of those advertising media accounts described below. The SEM Services may be subject to any additional terms and conditions of the applicable third party vendor who provides one or more of the products and services purchased by Customer hereunder.
(i) SEM Services include: monitoring Customer’s spend, reviewing selected groups of keywords, conducting competitive analysis against ‘in-market’ competitors to determine recommended keyword lists, managing Customer’s campaign on a weekly basis to monitor for overspend or underspend, using best practices to identify where budgets should be increased or decreased for keyword arrangements, and making and acting on recommendations to improve the performance of the campaign (as measured by factors such as cost per click, click through rate, etc.).
(ii) Google AdWords Services. If purchased by Customer, SEM Services may include services related to the purchase of Google AdWords, which services are subject to the following terms and conditions, and any other terms and conditions included in the Service Order:
In connection with PowerBoot’s sale of Google AdWords Services, PowerBoot may charge a management fee as part of the Fees.
For the purposes of this section, “Account” shall mean a Customer’s existing Google AdWords account and/or a Google AdWords account set up by PowerBoot for Customer under this Agreement.
Existing Accounts: PowerBoot will set-up Customer’s Google AdWords campaign during the period specified in the Service Order, using the Google AdWords management portal. By signing the Service Order, Customer consents to PowerBoot accessing its Google AdWords account (via the Google AdWords management portal) for the Duration specified in the Service Order, for the purpose of providing the SEM Services. Customer shall provide PowerBoot with passwords and such other access as it may require to perform the SEM Services, and Customer shall limit its own access to its Google AdWords account to “read-only” so that it cannot make AdWords purchases from its own Account. The reason for limiting the Customer’s access to its own Account is to enable PowerBoot to properly manage the Account on Customer’s behalf.
New Accounts: If Customer does not have a Google AdWords Account, PowerBoot will set up a Google AdWords Account from which it will purchase Google AdWords on behalf of Customer during the Duration specified in the Service Order.
Ownership of Accounts: Customer shall own any Google AdWords Account which it has already established prior to the commencement of the Duration. In the case of any Google AdWords Account which is set-up by PowerBoot to purchase Google AdWords on Customer’s behalf during the Duration, upon expiry or termination of the Duration, as applicable, the Customer’s ownership with respect to the Account will be as follows:
(a) Leader, Advanced and Premium Account Package with Duration of 6 months or less:
If Set-Up Fee Paid by Customer: PowerBoot will provide Customer with the Customer ID and login credentials for the Account, together with all Campaign data accumulated within the Account during the Duration.
If No Set-Up Fee Paid by Customer: PowerBoot will provide Customer with the Customer ID and login credentials for the Account, however, all Campaign data accumulated within the Account during the Duration shall be deleted from the Account.
(b) Leader, Advanced and Premium Account Package with Duration of 6 months or more:
PowerBoot will provide Customer with the Customer ID and login credentials for the Account, together with all Campaign data accumulated within the Account during Duration.
(c) Starter Account Packages:
No ownership rights shall accrue to the benefit of Customer and Customer will not be provided with the Customer ID or login credentials for the Account or any Campaign data within the Account.
- Facebook Advertising. If Customer purchases Facebook Advertising services, PowerBoot will create and manage Facebook advertising campaigns for Customer’s business and Customer hereby agrees to be bound by any additional terms and conditions as required by Facebook from time to time. PowerBoot makes no representations about the number of “Likes” produced by the Facebook advertising campaigns. Additionally, PowerBoot cannot control who may “share” or otherwise forward Customer’s Facebook advertisements.
- Twitter Advertising. If Customer purchases Digital Marketing Services comprised of Twitter account creation or advertising services, PowerBoot shall provide such services and Customer agrees to be bound by any additional terms and conditions as required by Twitter from time to time. PowerBoot cannot control who may “retweet” or otherwise forward Customer’s Twitter advertisements.
- Real Estate Sites. If Customer purchases Digital Marketing Services comprising a Real Estate Site, PowerBoot shall provide such services provided Customer agrees to be bound by the following additional terms:
(i) Customer shall be responsible to provide access to Canadian Real Estate Association’s (“CREA”) National Shared Pool Module and/or Member Feed Module, via the Customer’s CREA DDF portal;
(ii) Use of the CREA DDF modules are performed at the sole risk of the Customer including without limitation the risk that the Listing Content is inaccurate or incomplete. PowerBoot makes no representations or warranties, express or implied, including any warranty of merchantability, non-infringement, accuracy, completeness or fitness for a particular purpose and PowerBoot disclaims any responsibility regarding the accuracy of any Listing Content or the suitability of it for the Customer’s use;
If customer support is available in respect of one or more Digital Marketing Services, the contact details for the applicable support services will be set out in the Service Order.
PowerBoot reserves the right to modify the above terms and conditions at any point of time, including the time of an ongoing contract, and changes in the terms and condition will be notified to the clients through company email