Member Platform Participation Agreement
Last updated: August 25, 2021
ACADIUM MEMBER PLATFORM PARTICIPATION AGREEMENT ACADIUM INC., (“Acadium”) provides a full-service online marketplace platform (the “Platform”) geared towards digital marketing services, accessible through Acadium’s website at www.acadium.com (“Website”). The Platform enables businesses (“Business(es)”) to connect with freelancers (“Freelancer(s)”) and/or Acadium apprentices (“Apprentice(s)”. Using the Platform, Businesses can solicit the digital marketing services of either Apprentices and/or Freelancers to fulfill any marketing needs of the soliciting Business on an independent contractor basis, and Freelancers may look for engagements, while Apprentices may gain invaluable real-world exposure and working experience. The Platform also acts as a matchmaking recruitment vehicle, allowing Businesses to recruit Freelancer talent and engage Freelancer/Apprentice Members into their Business either from the very start of their Services Agreement (defined below) or upon completion of the Term (defined below) of their Services Agreement, as employees or full-time/part- time independent contractors of their Business, and on the terms and conditions set out in this Member Platform Participation Agreement (“MPPA”). We refer to Freelancer(s), Apprentice(s), and Business(es) each as a “Member”, and together “Members” of the Platform, and when we refer to “you”, we are referring to either a Member, or an individual who has filled out an Application (defined below), and is awaiting a decision by Acadium to be accepted as a Member of the Platform. As a first and fundamental condition to becoming accepted by Acadium as a Member to use the Platform, you must, accept the terms of this MPPA as well as the Terms of Use, Acceptable Use Policy, and Privacy Policy which are incorporated by reference to this Agreement (and as further explained below). However, acceptance of this MPPA does not guarantee that you will be accepted automatically by Acadium to use the Platform. You will need to meet all other requirements set out in this MPPA. For more information, please refer to Section 2 below.
The purpose of this MPPA is to address specifically the relationship as and between Members of the Platform (i.e. Freelancers, Apprentices, and Businesses) and as and between Members and Acadium, and the rules and procedures which all Members must follow, including but not limited to, (i) the process of becoming a Member on the Platform (i.e. application procedure, registration, account information); (ii) the terms by which Acadium Business Members and Freelancer/Apprentice Members will engage and communicate with one another in offering and requesting marketing services; and (ii) the terms, conditions, buyout provisions, and fees associated with the recruitment and engagement of Freelancer/Apprentice talent by Business Members into their respective Businesses as employees, and/or full-time/part- time contractors beyond the scope of the Services Agreement. This MPPA is not geared towards the general user of the Website (“User”), i.e. someone that has simply signed up for a User account on the Website but does not have access to the Platform, a visitor of the Website, or a Member. Acadium’s Terms of Use, are the terms, conditions, and rules that apply to any User of the Website.
THIS MPPA CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES THAT ARE APPLICABLE TO THE ACCESS AND USE OF THE PLATFORM. PLEASE READ THIS MPPA CAREFULLY BEFORE ENGAGING WITH OTHER MEMBERS. YOU UNDERSTAND THAT THE PLATFORM IS INTENDED TO BE USED TO FACILITATE THE ENTERING OF SERVICE ENGAGEMENTS AS AND BETWEEN FREELANCER/APPRENTICE MEMBERS AND BUSINESS MEMBERS, AND ACTS AS A MATCH-MAKING SERVICE ONLY. BY CLICKING/TICKING A BOX INDICATING YOUR ACCEPTANCE AS A MEMBER, OR BY ENGAGING IN THE USE OF THE PLATFORM, YOU AGREE TO THE TERMS OF THIS MEMBER PLATFORM AGREEMENT, ACADIUM’S TERMS OF USE, ACCEPTABLE USE POLICY, AND PRIVACY POLICY (AS YOU WILL ALSO BE CONSIDERED A USER OF THE WEBSITE). BY INDICATING YOUR ACCEPTANCE OF THE FOREGOING THROUGH ANY SUCH ACTION (I.E. CLICKING/TICKING A BOX), YOU ALSO UNDERSTAND AND AGREE THAT ACADIUM HAS NO LIABILITY FOR ANY ASPECT OF THE INTERACTIONS AND/OR TRANSACTIONS AS AND BETWEEN MEMBERS, INCLUDING THE TIMELY COMPLETION OF ENGAGEMENTS BY FREELANCER MEMBERS. ACADIUM CANNOT AND DOES NOT CONTROL THE RELATIONSHIP BETWEEN MEMBERS, AND WE DO NOT GUARANTEE THAT THE USE OF THE PLATFORM WILL RESULT IN A SUCCESSFUL ENGAGEMENT WITH ANOTHER MEMBER, OR THAT IT WILL MEET THE NEEDS, EXPECTATIONS, OR REQUIREMENTS OF MEMBERS. THE USE OF THE PLATFORM IS AT YOUR OWN DILIGENCE AND RISK. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY, YOU REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS MPPA IS AUTHORIZED TO ACCEPT THIS MPPA ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS MPPA AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THE TERMS OF THIS PLATFORM MEMBER AGREEMENT, THE TERMS OF USE AND USE POLICY, THEN DO NOT USE THE PLATFORM OR ANY OF ITS CONTENT OR SERVICES.
1.1 Definitions
1.1 “Applicable Law” means all applicable laws, statutes, constitution, principles of common law, rules, regulations, codes, acts, ordinances, orders, decrees, injunctions, by-laws, authorizations, directions, requirements, rulings, injunctions, agreements, and consents enacted, adopted, and/or in force by a court or governmental authority, body or department.
1.1 “Account” means the user account for which a prospective Member must register, and contains certain information which the prospective Member must provide, and which may include first and last name, profile information (biography, profile picture), company information, and any other such information as may be required by the prospective Member. Any such information will be collected, processed, and stored in accordance with our Privacy Policy, at https://acadium.com/privacy.
1.2 “Confidential Information” has the meaning set out in Section 8.1of this MPA.
1.2 "Deliverable(s)" means all documents, work product, and other materials that are prepared, created, produced, developed, and delivered by Freelancer Member to Business Member in the course of performing its obligations under a Services Agreement, such Deliverables which may be specified and set out in such Services Agreement.
1.4 “Freelancer/Apprentice Materials” means the materials, information, trade secrets, generic programming codes (including any object and source code) methodologies, processes, tools, data, documents, notes, techniques, reusable objects, routines, formulae, templates, sketches, designs, graphics, reports, or other know-how used by Freelancer/Apprentice Member in connection with performing the services and rendering the Deliverables to Business Member, in each case developed or acquired by Freelancer/Apprentice, (i) at any time prior to the Effective Date, (ii) independently of this Agreement; (iii) do not contain any of Business Member’s Confidential Information or other Business Member’s Intellectual Property Rights; or (iv) which are owned by a third party or in the public domain, and which Client has a right or license to use.
1.5 “Intellectual Property Rights” has the meaning set out in 8.1of this MPA.
1.6 “Privacy Laws” means any applicable federal, provincial, state, and local laws, regulations, and rules governing the collection, use, and disclosure of information relating to identifiable individuals, including but not limited to, the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), and any similar legislation enacted by any province or territory of Canada.
1.7 “Services Agreement” means an agreement as and between the Freelancer/Apprentice Member and Business Member setting out the terms, conditions, and scope of their engagement, the marketing services to be rendered by Freelancer/Apprentice Member, the Deliverables to be created, developed and/or produced and delivered by Freelancer/Apprentice Member to a Business Member, the duration/length of Freelancer Member’s engagement Business Member (i.e. the Term), Buyout Fees (defined in Section 4) and any other specifics. Acadium has provided its Members with a standard template Services Agreement, accessible at the following link: [INSERT LINK TO SERVICES AGREEMENT].
1.8 “Terms of Use” means the terms of use of the Platform as set out at https://acadium.com/terms, which apply to all Platform Members as the same may be amended by Acadium from time to time.
1.9 “Acceptable Use Policy” or “Use Policy” means Acadium’s community guidelines and policy as set out at https://acadium.com/use-policy, governing the use of the Website and Platform, to which all Platform Members must adhere, as the same may be amended by Acadium from time to time in accordance with its terms
1.10 “Privacy Policy” means Acadium’s policy on the collecting, processing, and storing of Personal Information inputted and/or gathered by Users and Members on our Website (including the Platform) located at: https://acadium.com/privacy.
1.11 “Website” means Acadium’s website located at: https://acadium.com.
2. Platform Eligibility Terms, Member Categories, Application Requirements, and Features
2.1 Eligibility the Use the Platform. To be eligible to use the Platform as a Member, the prospective Freelancer/Business applicant (“Applicant”) must proceed with the following steps:
1. accept Acadium’s Terms of Use and Use Policy.
2. be 18 years or older;
3. have the legal capacity to contract and/or enter into agreements;
4. register for an Account;
5. once an Account is created, apply to become a Member by filling out a corresponding application form
2.11 (“Application”). The Application for a Business will be different than for a Freelancer and Applicants must
answer separate qualifying questions.
It is important to note that creating an Account will not unlock any features available to Members, such as connecting Members with one another, the communication features made available to Members, accessing the engagement and job listings, collaborative tools, and other such features of the Platform. Applicants must be accepted as Members by Acadium onto the Platform. In addition to any qualifying questions required to be completed by Applicants on the Application, from time to time, Acadium will arrange an Applicant introductory meeting prior to accepting Applicants onto the Platform, regardless of whether they are a Freelancer or a Business.
2.12 Freelancer Members. Freelancers are vetted and screened by Acadium to ensure a fulfilling user experience by all Members, including Business Members. Freelancers must meet the requirements of Sections 2.1 and complete and submit an Application. The Application contains questions relevant to a Freelancer’s digital marketing work experience, the number of hours the Freelancer can commit to clients (i.e., Business Members), the Freelancer Applicant’s fee rate (expressed in United States dollars), the Freelancer Applicant’s full name, email address, city and country of residency. All such information will be collected, processed, and stored in accordance with our Privacy Policy. Acadium will review the Application and schedule a fifteen (15) minute interview call and render a decision as to whether the Freelancer qualifies to offer its services on the Platform to Businesses. Acceptance of Freelancers is not automatic and is at the sole and exclusive discretion of Acadium. A Freelancer must possess the qualifications and skills indicated on the Application to be considered for acceptance onto the Platform as a Member. Apprentices (defined in the Terms of Use) that successfully complete the requirements and certifications necessary to qualify as a Freelancer may also apply to become a Freelancer Member on the Platform. Apprentices are not automatically upgraded to Freelancer status and Acadium will undergo a vetting process of the same nature as with Freelancers.
2.13 Business Members. In addition to meeting the requirements of Section 2.1, and completing an Application, Businesses will be required to schedule a fifteen-minute (15) introductory call to discuss the Business Applicant’s freelancing and recruiting needs. Much like Freelancers, Businesses are also vetted and screened to ensure that their needs and requirements meet the Platform’s offering. Acadium may also match a Business with an Apprentice to work with the Apprentice where such Business has the necessary skills and expertise to offer mentorship and guidance to an Apprentice. The terms of an engagement by and between an Apprentice and a Business will differ from an engagement by and between a Freelancer and a Business. To learn more, please email us at support@acadium.com.
2.14 Apprentice Members. It is free to register to become an apprentice on the Acadium Platform. However, in order to freelance as an Apprentice, Apprentices must also fill out an Application, like the Freelancer Application. More detailed information about becoming an Apprentice, how apprenticeships work can be found here: https://acadium.com/apprenticeships-for-talent.
2.15 General Member Account Terms. Each Member understands and agrees that such Member is responsible for the quality and confidentiality of the information that such Member submits or provides to us. This means that you a Member is responsible for updating and correcting information a Member has submitted or provided to create or maintain the currentness, completeness, and accuracy of his/her/its Member Account. A Member must safeguard his/her/its Member password and supervise the use of his/her/its Member Account. A member must not share his/her/its username and password with any other individual/person. A member is solely responsible for maintaining the security of his/her Member Account and maintaining settings that reflect the Member’s preferences. We are not responsible for any fraudulent activities, misrepresentation, or any other activity on a Member’s Account as a result of a Member’s failure to take precautions to prevent any such access without such Member’s authorization. We will assume that anyone using the Platform or anyone having any activity on the Member’s Account (including any transactions occurring thereon) is the Member that registered for Membership onto the Platform. A Member accepts all risks of any unauthorized access to and use of his/her/its Member Account. A Member will always be fully liable for any losses and/or damages that may result from any such unauthorized access. A Member must promptly notify Acadium a Member discovers or otherwise suspects any security breaches related to the Platform. A Member’s Membership and Member Account is also non- transferable. A Member cannot sell, combine, or otherwise share it with any other individual/person. Any violation of these terms, including, without limitation, A Member’s failure to maintain updated and correct information concerning his/her/its Member Account will cause a Member’s User Account to fall out of good standing and Acadium may suspend, cancel, or terminate your User Account in our sole discretion.
2.16 Member Verification. While Acadium undergoes a vetting process in connection with its Members (i.e. Freelancers and Businesses), Acadium does not and will not in the future endorse, validate, guarantee, make representations, or provide warranties for or about the following: (i) that any Freelancer on the Platform will have the desired skills, training, expertise, qualifications, or educational background to satisfy the needs of a Business wishing the engage any such Freelancer(s), (ii) that any information a Business or Freelancer provides to Acadium during the vetting process or thereafter upon acceptance of the Freelancer or Business as a Platform Member in connection with (including training, knowledge, skills, background, expertise, achievements, identity, legal, material, or physical existence, or otherwise) is truthful, complete, and/or accurate; (ii) that any content Member posts onto its Member profile page as displayed on the Platform is truthful, complete and accurate (“Member Content”). Acadium does not represent, warrant, or guarantee that the use of the Platform by Platform Members will be for its intended purpose, nor will the services exchanges as and between Members and as and between Members and Acadium meet and/or satisfy the expectations of such Members. A Member is solely responsible for the accuracy and completeness of its Member profile page, and Member Content, and is and shall always be responsible for any legal action that may be instituted by other Members or third parties as a result of or in connection with such Member’s Content posted on Member’s profile page.
2.17 Platform Functionality. The Platform’s functionality will differ slightly depending on whether you are a Freelancer Member, Apprentice Member, or Business Member. Apprentice Members will be able to register and take courses and training, build their profile, explore apprenticeship opportunities by responding to listings posted by Business Members that have expressed to Acadium their willingness and ability to provide mentorship and guidance to Apprentices, and communicate with Business Members to respond to interviews. Similarly, Freelancer Members will be able to explore and apply for Freelancer opportunities as listed by Businesses and respond to interview requests. Businesses will be able to post listings, discover suitable Freelancer and/or Apprentice Member candidates for their listings, activate the messaging feature in their Member Account settings to accept messages, communications, and interview requests from Freelancer/Apprentice Members, and activate the function of making their Business Member profile public and visible to Freelancer/Apprentice Members to facilitate matchmaking. The Platform also offers automatic Member matchmaking recommendations for all Members, and Members are free to accept or reject any such recommendations. Members can also keep their profiles private. For more information about how the Platform works, please visit the Help Center at: https://support.acadium.com/hc/en-us.
2.18 Feedback and Ratings. We have implemented a Member rating system to allow Members to rate and review each other and provide comments in respect to a Member (“Ratings”), including but not limited to indicators of Member satisfaction, and other feedback left for and by Members exclusively. Members may also submit or provide suggestions, comments, questions, ideas, or other feedback to us concerning the Platform (“Feedback”). Feedback is voluntary. Members understand that the submission of Ratings and Feedback benefits all users and Members of the Platform, and that Acadium may freely use any such Ratings and Feedback at our will to design, develop, market, and further improve our technology used to operate the Service, provide input and feedback to our Members, expand the reach of our Platform, improve and increase the ease and enjoyment of our Members’ experience without any restrictions or obligations of confidentiality, acknowledgment, or monetary compensation owing to a Member. A Member hereby understands and agrees that any submission of Feedback must not contain any computer virus or other malware that could in any way affect the operation of the Platform. We have no obligation to respond to any Feedback a Member submits to us. Additionally, Acadium does not generally investigate any remarks posted by Members. Acadium is not legally responsible for any feedback or comments posted or made available on the Platform by any Member or third parties, even if that information is defamatory or otherwise legally actionable. A Member may not do (or omit to do) anything that may undermine the integrity of the Feedback and Rating system. To protect the integrity of the Feedback and Rating system and protect Members from abuse, Acadium reserves the right (but is under no obligation) to remove posted Feedback or information that, in Acadium’s sole judgment, violates this MPPA, the Terms of Use, and Usage Term, or negatively affects our marketplace Platform, diminishes the integrity of the Feedback and Rating system or otherwise is inconsistent with the business interests of Acadium. Each Member acknowledges and agrees each such Member will notify Upwork of any error or inaccurate statement in a Member’s feedback results, and that failure by a Member to do so, Acadium may rely on the accuracy of such information. Acadium is also entitled to suspend or terminate a Member’s Account at any time if Acadium, in its sole and absolute discretion, is concerned by any Feedback about a Member or a Member’s Feedback and/or Rating, where we believe our feedback system may be subverted.
3. Fees and Payment Terms
3.1 Membership Fees and Dues.
(a) Freelancer Members - It is free to apply to become a Freelancer Member or an Apprentice Member. Freelancer Members and Apprentice Members must however meet the requirements set out in this Platform Membership Agreement, as well as any other conditions Acadium may require from time to time. Acadium will deduct and a Freelancer will be charged a service fee (“Service Fee”), typically a percentage of the Payout amount (referenced in Section 3.3 below) in connection with a Payment Request (defined below).
(b) Apprentice Members- It is free to become an Apprentice. We do not deduct any commission from Apprentices since Apprentices offer their time to Businesses for free in exchange for mentorship, training, and guidance. Business Members purchase credits and/or pay to become Members, which in turn covers the cost of engaging an Apprentice. Upon successful completion of the required amount of apprenticeships, Apprentices can apply to become Freelancer Members and once accepted as a Freelance Member, begin receiving payment for their services. However, once a Freelancer Member, Acadium will deduct a Service Fee on payments received by Business Members for Services Agreements with Freelancer Members.
(c) Business Members (Subscriptions and Credits)- Business Members must pay to become Members. We offer quarterly and annual Acadium Membership subscription plans (“Subscription Plan”), commencing on the date payment is received by Acadium. Memberships will automatically be renewed and billed for successive quarterly or annual terms unless Business Members provide Acadium with sixty (60) days’ notice in writing requesting a cancellation of their Subscription Plan. To cancel your subscription, please contact the Acadium Membership Success Team at: support@acadium.com. Business Members may also purchase credits that can be applied towards working with an apprentice (“Credits”). For more information about how billing works and billing plans, please visit: https://support.acadium.com/hc/en-us/articles/360053279074-Acadium-s-Billing- Plans-
3.19 Payment Processing. We use Stripe as our integrated third-party payments provider (“Payment Provider”) to process Payment Requests (defined below), as well as to process fees in connection with Subscription Plans and Credits. Members will be responsible for third-party processing fees and currency conversion fees when making payment on the Platform (either when making payment or receiving payment). Our Payment Provider is subject to change from time to time. You authorize and direct us to transmit your billing information to any such Payment Provider we use on the Service, or if we change Payment Providers, to any such newly instated Payment Provider, for such purposes. You are bound by any such Payment Provider’s terms of service/use and privacy policy, and the foregoing will govern your relationship with such Payment Provider. You understand that we are not a party to your contractual agreement with the Payment Provider. You waive and release us from all liability arising from your use of the Payment Provider.
3.20 Payment/Payout Requests (Freelancer/Business). A Freelancer Member working on an engagement with a Business can keep track of his/her time within the Platform using the Platform’s functions and tools. The Freelancer Member can ‘submit’ a payment request (“Payment Request”) to the Business via the Platform’s functionality. The Business will receive a notification of the Payment Request and will make payment through Acadium’s Payment Provider. The Freelancer will receive the payout amount (“Payout”) for the Payment Request via the Payment Provider. Currently, Stripe charges a transaction service charge which is typically 2.9% + 30¢* per transaction and potentially subject to additional cross-border surcharges. The applicable transaction service charge will be added and incorporated into a Freelancer’s Payment Request. The transaction service charge will be paid for by the Business and automatically deducted from each transaction. Stripe determines the transaction service charge and we have no control over it, and this can change subject to Stripe’s terms and conditions.
3.21 Payments and Late Payments. All payments for services and Deliverables must be made on the Platform. Unless Acadium has given express written permission, attempts to make payments as and between Members for services and Deliverables outside of the Platform will lead to sanctions not limited to immediate suspension of a Member’s Account. Subject to the Buyout provisions in Section 4.5, must immediately report to Acadium any offers of payment outside of the Platform made by a Member. A Business Member will have thirty (30) days from the date of a Payment Request to make payment, failing which Acadium reserves the right to send the invoice to an agency for collections. Any late payments (whether such late payments are in connection with a Payment Request, Subscription Plan, or other applicable fees) will incur interest at a rate equal to 1.5% per month (19.57% per annum) or the highest rate permitted by applicable law, whichever is lower. All amounts payable by a Member under this MPPA and/or Services Agreement (if any) are exclusive of any provincial, federal, state, or other taxes, duties, or levies assessed by applicable governmental authorities under Applicable Law and applicable to Member in Member’s jurisdiction. All such taxes, duties, and levies shall be assumed by and paid for by Member in connection with a Payment Request.
3.22 Currency. All amounts referenced in this MPPA or displayed on the Platform or the Website, including payments and cost of Member Subscription, Credits, rates, and payments for services rendered by Freelancer Members to Business Members (i.e. Payment Requests), are expressed in lawful currency of the United States (USD).
3.23 Refunds/Cancellations. Members are strictly discouraged from causing cancellations or requesting refunds. Where a Freelancer/Apprentice Member is at fault for causing a Business Member to request a refund (i.e. for instance, due to poor quality of service, delayed service, lack of communication or response, unprofessional conduct or behaviour, or cancellation of Services Agreement without cause or reason), the Freelancer/Apprentice Member’s Rating will be negatively impacted, and ability to receive new matches and freelancer work (or in the case of an Apprentice, apprenticeship opportunities) from Business Members on the Platform. Where the Business Member is found to be the cause of the refund (for instance, an early cancellation due to a change in their business needs, poor mentorship, lack of direction or instructions given to a Freelancer/Apprentice, inappropriate and/or unprofessional behaviour, lack of communication, or otherwise), such Business Member’s Rating will be negatively affected. A Business Member is committed to paying for any invoice as invoiced by the Freelancer Member unless a Freelancer Member agrees to credit any amounts (in whole or in part) of the Invoice back to Business Member. Member experience is our priority. Acadium will also attempt to assist to resolve a Business Member’s dissatisfaction with a matched Freelancer/Apprentice’s services and/or Deliverables during the Term of the Services Agreement. Please contact us at support@acadium.com to see how we can assist in resolving your issues and complaints.
4. Services Agreement Terms.
4.1 Services Agreement. If a Businesses Member wishes to proceed with engaging a Freelancer Member, the Platform will recommend a Freelancer Member to a Business Member through the Platform. Business Member may accept such Freelancer Member or may seek out an alternate Freelancer Member. Acceptance by Freelancer Member of a request by a Business Member may be automatically processed through the Platform or may require separate confirmation by the Freelancer Member. Members may use Acadium’s standard Services Agreement accessible at the following link: [INSERT LINK]. HOWEVER, MEMBERS UNDERSTAND THAT ANY SUCH AGREEMENT AS BETWEEN MEMBERS SHALL BE A SEPARATE AGREEMENT AS AND BETWEEN THEMSELVES SHALL NOT INCLUDE ACADIUM AS A PARTY. THE TERMS OF ANY SUCH AGREEMENT WILL INCORPORATE THIS PLATFORM MEMBER AGREEMENT BY WAY OF REFERENCE.
4.2 Defining the Scope of Engagement and Deliverables (the Services Agreement). The Business Member must clearly define the scope of the Freelancer Member’s engagement, the Deliverables to be produced and delivered to the Business Member (and specifications of the Deliverables), a timeframe for the delivery of the Deliverables, delineation, and Business Member’s ownership of the Intellectual Property Rights in and to the Deliverables, all fees costs, and any other specifics in the Services Agreement. The Business Member must engage the Freelancer Member prior to the Freelancer Member providing services and engaging in the development of the Deliverables for the Business Member.
4.3 Minimum Term of Services Agreement. Business Members must commit to engaging and mentoring Apprentices for three (3) months at ten (10) hours per week (“Minimum Engagement Term”). However, there is no formal minimum commitment for engaging a Freelancer.
4.4 Timelines and Estimates for Completion of Deliverables of Services Agreement. Freelancer Members must perform the work, provide the services and deliver the Deliverables within the delivery times agreed with the Business Member in the Services Agreement. Failure to do so will mean such Member’s Ratings will be penalized for late delivery. If a Freelancer Member is unable to meet the requirements of its engagement with Business Member within the time previously agreed, the Freelancer Member must inform the Business Member immediately and provide a revised delivery date. If the Freelancer Member does not complete the terms of its Engagement with the Business Member, Business Member shall notify Acadium immediately, and Acadium will attempt to resolve any issues with Business Members.
4.5 Recruiting a Freelancer/Apprentice as an Employee or Full-Time/Part-Time Contactor. Business Members may hire their matched Freelancer and/or Apprentice Members as employees and/or full-time/part-time contractors at any time during the Services Agreement, or thereafter upon completion of the Services Agreement. Business Members are not required to have an Engagement Agreement in place to hire a Freelancer and/or Apprentice member as an employee and/or full-time/part-time contractor into their organization without any restrictions or limitations, outside of the Platform. Business Members have the option of simply using the Platform as a vehicle to hire talent without engaging the Freelancer and/or Apprentice Member for a set time before doing so. The only condition Acadium has put in place and to which all Members must adhere is that any such recruiting and/or hiring activities must take place on the Platform, and, Business Members must provide notice in writing to Acadium of their intention to hire any such Freelancer and/or Apprentice Members, prior to making any such Freelancer and/or Apprentice Member an offer of employment with Business Member. If the Freelancer Member and Business Member have entered into a Services Agreement, such notice must be delivered to Acadium at any time during the term of their Services Agreement (such term which shall be defined therein). Business Members must also pay the prescribed buyout fee of $5,000.00 (“Buyout Fee”). Upon Acadium receiving notice from a Business Member, and receiving payment of the Buyout Fee, the Business Member is free to make an offer to enter into a contractual Employer-Employee/Contractor Agreement with Freelancer and/or Apprentice Member outside of the Platform.
5. Employment Liability
5.1 No assertion of control or management of the relationship as and between Members. Business Members acknowledge that Acadium does not and shall not at any time, and in any way, supervise, direct, or control the Freelancer Members’ work delivered or services performed for Business Members. Acadium does not set Freelancer Members’ work hours and location of work. Acadium will not provide Freelancer Members with training, or any equipment, labour, or materials Freelancer Members may need or require for fulfilling their duties to Business Members, nor will it cover any expenses or costs in connection therewith. Members are solely responsible to cover any and all such costs (such costs which may be mutually agreed upon by the transacting Members).
5.2 Taxes. Acadium will not deduct any amount for withholding, unemployment insurance, employment benefits, or other taxes as it would in the case of an employee. Members will be solely responsible for all tax returns and payments required to be filed with or made to Canada Revenue Agency or other tax authority within the Member’s local jurisdiction under Applicable Law, concerning the transactions and provision of services contemplated as and between the Platform Members.
5.3 Non-Exclusivity. Business Members will not seek to exercise any control over Freelancer Members and will not require Freelancer Members to engage with Business Member on an exclusive basis. Freelancer Members are free at all times to provide services to persons or businesses other than the respective or relevant Business Member(s), including any competitor of the Business Member. However, this Section 5.3 will not apply to a Business Member that has engaged the Freelancer Member outside of the scope of a Services Agreement and the Platform (and has done so in accordance with this Agreement, including complying with all buyout provisions as further set out Section 4.5) and satisfying any other payment obligations associated therewith.
6. Representations, Warranties, and Covenants
6.1 Business Members’ Representations, Warranties, and Covenants. Business Members represent and warrant to Acadium and Freelancer and Apprentice Members that: (i) Business Member is a duly registered business within its jurisdiction and in good standing; (ii) Business Member has the requisite expertise, skills, training to provide mentorship and guidance to Apprentices; (iii) Business Member has all the necessary licenses, authorizations, and consents to enter into transactions with Freelancer and Apprentice Members, and has authorized a representative as its signing authority to complete and execute all agreements, make payments, communicate with other Members, and act as its duly authorized representative for the purposes of this MPPA; (iv) Business Member is not using the Platform for illicit or illegal purposes; (v) all payment information provided to Acadium via the Platform and Stripe is valid, complete and up to date; (vi) Business Member will maintain adequate insurance to cover any costs and/or expenses resulting from any claims and/or disputes brought forth by another Member and/or third party; (vii) Business Member will comply with Applicable Law, this MPPA, the Terms of Use, Usage Policy, and Privacy Policy; and (viii) any other representations and warranties contained in the provisions of this MPPA and/or Services Agreement in connection with Freelancer Member are truthful and accurate.
6.2 Freelancer Member Representations, Warranties, and Covenants. Freelancer Member acknowledges and agrees that Freelancer Member, not Acadium, is solely responsible for all services performed, and Deliverables rendered, produced, and/or delivered to the Business Member with which Freelancer Member has transacted, and the consequences of licensing and distributing such Deliverables. Freelancer Member represents and warrants to Acadium and to Business Member that: (i) Freelancer Member owns or has all the necessary licenses, rights, consents, and permissions to perform the transacted services and deliver the Deliverables requested by Business Member; (ii) Freelancer Member has all the requisite skills, competencies, and abilities to perform the services requested by the contracting Business Member; (iii) Freelancer Member will perform the services and render the Deliverables in a professional, timely, and workmanlike manner to the contracting Business Member, and that all Deliverables will be useable and error-free; (iv) unless mutually agreed upon by the Parties otherwise, Freelancer Member will do all things, perform all acts, and execute any documents necessary and as may be required to transfer all Intellectual Property Rights in and to the Deliverables to the Business Member with whom Freelancer Member has transacted; (v) the distribution and use of any Deliverable by a Business Member will not infringe upon or otherwise violate the rights of any third party; (vi) any such Freelancer services provided to Business Member under the scope of Freelancer Member’s engagement with a Business Member are and will continue to be in compliance with all Applicable Law, the terms of this MPPA, the Terms of Use, Usage Policy, Privacy Policy, the terms of a Services Agreement (if applicable); (vii) the entering into of a Services Agreement with any Business Member will not violate the terms of any of Freelancer Member’s agreement(s) with any other party or by which such Freelancer Member is bound; and (viii) any other representations and warranties contained in the provisions of this MPPA and/or Services in Agreement in connection with Freelancer Member are truthful and accurate.
6.24 Member Content Representations and Warranties (All Members). Members represent and warrant to one another and to Acadium that any such Member Content will not: (i) infringe upon or misappropriate any Intellectual Property Rights of any other Member, and/or third party; (ii) violate or breach any Applicable Law; (iii) contain slanderous, defamatory or libelous remarks or commentary; (iv) promote, cause to promote, or incite criminal, illegal, or terrorist activity or contain any content or materials linked to any unlawful, immoral, obscene, and/or unauthorized act(s) or purpose(s), including human and/or drug trafficking, pornography, crimes associated with hate, violence, discrimination, terrorism, money- laundering, tax evasion, pyramid schemes, lotteries, raffles, gambling activities, or any other form of prohibited financial activity; (v) will not include incomplete, false, inaccurate, or misleading information; and/or (vi) will not contain any viruses, malicious code, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information from and on the Platform.
6.25 General Authority to Act. Where this MPPA is entered into by an agent on behalf of a third party, the applicable Platform Member warrants and represents that it has the authority to enter into this MPPA on behalf of such h third party.
6.26 Acadium Representations Warranties. Acadium represents and warrants to Members that Acadium has the right and license to grant Members access to the Platform as provided in this MPPA and that it will comply with Applicable Law.
7. Intellectual Property Rights
7.1 Definition. For this purpose of this MPPA, “Intellectual Property Rights” means all intellectual property rights or interests, including without limitation, (a) patents; (b) trademarks, tradenames, trade dress; (c) internet domain names, web addresses, web pages, website, and uniform resource locators (URLs); (d) works of authorship, copyrights and copyrightable works, publicity and/or privacy rights, expressions, designs, industrial design registrations, industrial property rights (statutory or otherwise, and whether registered or not); (c) software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) trade secrets; and (f) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered, all registrations, rights to register or apply for registration, renewals, reversions, all waivers and assignments of moral rights, all assignments of model and property releases, and all rights to enforce such rights or interest, in any work, including without limitation, the structure, sequence and organization of the same, worldwide and in perpetuity.
7.2 Acadium Intellectual Property Rights. Except for Member Content and Deliverables, all Intellectual Property Rights in or arising out of or in connection with the Website and the Platform shall be owned by Acadium, including Feedback and Ratings. Acadium alone (and its licensors, where applicable) shall own all rights, title, and interest, including all related proprietary rights, in and to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by a Member or any other party relating to the Platform. Acadium’s name, logo, and the product names, brands, or marks associated with Acadium, the Website, and/or the Platform are trademarks of Acadium or third parties, and no right or license is granted to use them. Any Intellectual Property Rights of Acadium not identified in this Platform Member Agreement have been further set out in the Terms of Use and Usage Policy.
7.3 License to Access and Use Platform. During the Term and subject to the terms of this MPPA and the Terms of Use and Use Policy, Acadium grants Platform Members a non-exclusive, non-transferable limited right to access and use the Platform on their own behalf or as an agent of the Member to offer or submit requests for services, or in the case of Freelancers, applying for engagements, and in the case of Business Members, seeking to recruit, retain and/or engage Freelancer Members’ talent. through the Platform.
7.4 Member Intellectual Property Rights and License to Member Content. All intellectual Property Rights in or arising out of or in connection with Member Content are and shall be own exclusively by Member. We do not claim ownership in and to any such Member Content. Member hereby grants Acadium a non- exclusive, sublicensable, irrevocable, and royalty-free worldwide right and license to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, comment on, modify, adapt, translate, create derivative works based upon, publicly perform, make available and otherwise exploit such Member Content, in whole or in part, in all media formats now known or hereafter devised and on third-party sites and platforms in any number of copies and without limit as to time, manner of frequency of use, without further notice to such Member, and without the requirement of permission from or payment to such Member or any other person or entity.
7.27 Deliverables Ownership. Upon the payment of the Invoice, and any other amounts due and payable to Freelancer Member (or to Acadium in the case of an Apprentice Member), all Deliverables shall constitute Business Member’s Intellectual Property Rights, and unless otherwise agreed upon in a Services Agreement, Freelancer/Apprentice Member hereby understand sand agrees that the Business Member shall be entitled to the sole benefit and exclusive ownership, throughout the world in perpetuity, of all right, title and interest in and to Deliverables, and the right to adapt or modify and commercially exploit any or all of the Deliverables (in whole or in part) in any manner whatsoever; subject only to any limits imposed by Applicable Law. In furtherance of its representations referenced in Section 6.4, Freelancer/Apprentice hereby represents and warrants that the Freelancer/Apprentice has all requisite ownership, rights, and licenses to fully perform its obligations under this MPPA and the Services Agreement (if any) and to grant to the Business Member all Intellectual Property Rights in and to any Deliverable rendered/delivered in connection with the services transacted as and between Freelancer/Apprentice and Business Member, free and clear of any agreements, liens, adverse claims, encumbrances, and interests of any third party. The Freelancer/Apprentice hereby does: (i) assign, transfer, and otherwise convey to the Business Member, irrevocably and in perpetuity, throughout the world, all right, title, and interest in and to any Deliverable rendered under the services for which the Members have contracted between themselves, including all Intellectual Property rights therein; and (ii) irrevocably and unconditionally waive, and agree not to assert, any moral rights under applicable copyright law, including without limitation attribution of authorship, the right to restrain any distortion, destruction, or modification concerning the Deliverables, and the Intellectual Property rights therein. Notwithstanding, and unless otherwise mutually agreed upon by the Parties in writing, the Freelancer Member will retain the exclusive right and ownership in and to all Freelancer/Apprentice Materials. Any such arrangements or agreement concerning the Intellectual Property Rights of Members not otherwise expressed under this MPPA and which may be mutually agreed upon by the Parties shall not be incorporated by references to this MPPA, and the Members shall be solely responsible for resolving their rights and obligations in respect to any such Intellectual Property Rights in and to the Deliverables or other materials produced and/or exchanged as and between them. Acadium explicitly disclaims and any all liability or responsibility in respect to Members' Intellectual Property Rights (including their connection with and/or to any third-party Intellectual Property Rights).
8. Confidentiality
8.1 Definition. For the purposes of this MPPA, “Confidential Information” means any information disclosed by either Party under this Agreement (the “Disclosing Party) to the other party (the “Recipient”), either directly or indirectly, whether orally or in writing, or that is disclosed to the Recipient through personal inspection of tangible objects (including without limitation material or information relating to such Disclosing Party’s research, development, know-how, products, product plans, services, customers, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing, finances, or other business information or trade secrets), or is in any way otherwise accessed, directly or indirectly by the Recipient, on or after the Effective Date hereof, whether or not designated or marked as “Confidential,” “Proprietary” or some similar designation, and is information that is reasonably understood as confidential given the nature of the information and the circumstances of disclosure. All discussions as and between Members, and the Services Agreement (if any) will also be deemed as Confidential Information of such Member. Each Member agrees that the Confidential Information provided by one Member to another Member under a Services Agreement shall be used by each such Member solely to perform his/her/its obligations as set forth in the Services Agreement, and for no other purpose.
8.2 Exceptions. Confidential Information shall not include information which (i) becomes a part of the public domain through no act or omission of the Recipient; (ii) was in Recipient’s lawful possession prior to the disclosure by discloser and had not been subject to limitations on disclosure or use, as shown by Recipient files existing at the time of disclosure; (iii) is independently developed by Recipient’s employees or independent contractors who have not had access to the Confidential Information; (iv) is lawfully disclosed hereafter to Recipient, without restriction, by a third party who did not acquire the information directly or indirectly from discloser; or (v) is required to be disclosed by law or by order or requirement of a court, administrative agency, or other governmental body, provided that Recipient provides prompt, advance notice thereof to discloser to enable discloser to seek a protective order or other similar relief.
8.3 Non-Use and Non-Disclosure. The Recipient shall treat as confidential all Confidential Information of the Disclosing Party, shall not use such Disclosing Party’s Confidential Information except to exercise its rights and perform its/his/her obligations under this MPPA, the Terms of Use, Usage Agreement, and the Services Agreement (if any), and shall not disclose such Confidential Information to any third party. Without limiting the foregoing, the Recipient shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the Disclosing Party. The Recipient shall promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of the Disclosing Party’s Confidential Information.
8.28 Equitable Relief. The Recipient hereby acknowledges and agrees that it would be damaging to the Disclosing Party if Confidential Information of the Disclosing Party which the Recipient has or will come into its possession or knowledge in connection with the Agreement, or the performance of its obligations hereunder, is used other than is authorized under this Agreement or is disclosed to any Person. It is understood that such damages may be difficult to calculate, that monetary damages alone may not be a sufficient remedy for any breach of the confidentiality obligations contained in this Section 8, and that such breach will cause irreparable damage to the Disclosing Party. It is hereby agreed that upon any such breach, or threatened breach, by the Recipient, the Disclosing Party wishing to protect its Confidential Information will be entitled to seek and obtain equitable relief, including injunctive relief and specific performance, or any other relief as may be granted by any court, without the necessity of proving actual damages or posting of security or a bond.
8.29 Privacy and Personal Information. Each Party agrees that it will not, without the prior written consent of
the other Party, disclose or make available any Personal Information (as that term is defined in the Applicable Privacy Laws) (“Personal Information”) to any other Person except for designated employees, agents, representatives or contractors of such Party, who have a need to access the Personal Information to fulfill the terms of this MPPA, and who have been contractually bound to maintain the privacy of such Personal Information. Each Party agrees that Personal Information provided to it by the other Party shall only be used for such purposes as are specified herein and neither Party shall sell, transfer or disclose such Personal Information to any other person. The Parties will comply with all Privacy Laws and Applicable Law concerning the use, destruction, retention, and security of the Personal Information, under this Agreement.
8.30 Destruction. Each Party, upon request of the other Party or within thirty (30) days after the termination of
this Agreement (whichever is earlier), agrees to return and cause its representatives, agents, and contractors to return, all copies of Confidential Information belonging to or provided by the other Party or destroy such copies as directed by that Party and certify their destruction.
9. Term and Termination
9.1 Term. This MPPA is effective by and between Members and Acadium as of the date of Member’s acceptance of the terms of this MPPA and shall be of full force and effect indefinitely (“Term”) unless and until (i) a Member deletes his/her/its Member Account and ceases to use the Platform, or (ii) is terminated in accordance with Section 9.2.
9.2 Termination. Acadium or Platform Member may each terminate this MPPA immediately on written notice, (i) for convenience by providing the other party thirty (30) days prior written notice; (ii) where either party breaches a material term of this MPPA that, if capable of cure, is not cured by the breaching party within thirty (30) days written notice from the other party; (iii) ceases to carry on business as a going concern; or (iv) files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy reorganization or insolvency proceedings are instituted by or against the other party. This MPPA shall automatically terminate and shall not be applicable to a Member on the earlier of, (i) a Member’s deletion of Member’s Account (either by Acadium at Acadium’s sole discretion in accordance with this MPPA, or the Member on the Member’s own accord), (ii) a Buyout of a Freelancer Member by a Business Member; or (iii) the cessation of existence of the Platform.
10. Links and Third-party Websites, Content, and Integrations
10.1 The Platform uses third-party service provider integrations to operate the Service (“Third Party Integrations”), such as Stripe. We may also provide other links, pointers to other websites or content, such as but not limited to social media links, and features that may also enable you to register a User Account or interact with us. (“Third Party Content”). We do not own or control any such Third-Party Content or Third-Party Integrations. Your use of any such Third-Party Integration and/or Third-Party Content is at your own risk, and we do not and will not accept any responsibility for any loss or damage that may arise from your such Third-Party Content and/or Integrations. When you leave our Website (inclusive of the Platform), our Terms and policies no longer govern. You should review any Third-Party Content or Third-Party Integration Provider’s applicable terms and policies, including, without limitation, their privacy and data gathering practices.
11. Infringement and Copyright Policy
11.1 If a Member believes that the Platform (or any part of it, including any of its materials or content, including any Member Content) infringes any copyright or other intellectual property right, a Member may submit a notice of alleged copyright infringement to support@acadium.com, and we will investigate such Member’s request submission of the same. In submitting a notice(s), Members are asked to please provide us with the following information:(i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) the reporting Member’s contact information, including address, telephone number, and an email address; (v) a statement by the reporting Member that the reporting Member as a good faith belief that use of the material (or Member Content) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vii) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. We reserve the right to remove any materials or content (including Member Content) on the Platform alleged to be infringing and/or terminate a Member’s Account without prior notice and at our sole discretion. If the reporting Member knowingly misrepresents that any materials, content (including Member Content), or any part of the Platform, is infringing, such reporting Member may be liable to us for certain costs and damages.
12. Electronic Communications
12.1 Members consent to receive electronic communications from us either in the form of email or other forms of electronic messages sent to Members at the addresses listed on each such Member’s Account or by communications posted on or notifications through the Platform (“Electronic Communications”). Member acknowledges and agrees that any Electronic Communication shall satisfy any legal requirement that such communication or notification be in writing.
13. Disclaimers, Indemnification, and Liability Terms
13.1 Disclaimers. Platform Members acknowledge and agree that Acadium is a marketplace that acts as an intermediary and conduit connecting Members with one another, for the purpose of facilitating interactions as and between Members to engage in transactions relating to marketing services. All materials, information, products, software, programs, and services are provided “AS IS”, with no warranties or guarantees whatsoever. Without limitation, Acadium makes no warranty or guarantee that the Platform will be uninterrupted, timely, secure, or error-free. The downloading or obtaining of any material from or through the Platform is at Members’ own discretion and risk and Member will be solely responsible for any loss of data; and damage to a Member’s computer system or another device, that results from the same. No advice or information, whether oral or written, obtained by a Member from another Member of the Platform, or Acadium and its respective successors, affiliates, contractors, employees, suppliers, licensors, partners or agents, or through, on, or from the Platform shall create any warranty not expressly stated in this MPPA. Acadium does not warrant or represent the suitability, skills, qualifications, expertise, the truthfulness of information, performance, quality of work, in connection with a Freelancer or Business on the Platform. For the sake of clarification, Acadium is not and shall never be held responsible for and disclaims any and all liability related to any and all works and Deliverables, or other actions of any Freelancer, Apprentice or Business Members. Accordingly, any agreement in respect of Deliverables and/or any other actions of the Members will be made at such Members’ own risk. Acadium is not a party to any disputes between Members although we provide a dispute resolution mechanism to assist Members in resolving any such issues arising between them. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS MPPA (IF ANY), AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ACADIUM DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, BY USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, TITLE, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
13.2 Indemnification. Each Platform Member (the “Indemnifying Party”) shall defend Acadium, its directors, officers, employees, licensors, affiliates, representatives, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives (collectively the “Indemnified Parties”) from and against any actions, suits, or proceedings brought against the Indemnified Parties by a third party to the extent arising as a result of: (i) the Indemnifying Party’s use or misuse of, or in connection with the Platform; (ii) breach of warranty; (iii) breach by the Indemnifying Party of any representations, warranties or other commitments (including any breach thereof) made by the Indemnifying Party to the Indemnified Parties in respect to the carrying out of the Indemnifying Party’s obligations hereunder; (iv) violation of any law or regulation by the Indemnifying Party (including, without limitation, any privacy or personal information protection law or regulation); (v) fraud or fraudulent misrepresentation of any kind, including but not limited to any content or information posted onto the Platform in connection with the Member’s Platform User Account, including name and last name, experience, achievements, biographical information, qualifications, photo, or otherwise; (vi) breach, violation, misappropriation or infringement of a third party’s Intellectual Property Rights arising from and/or related to Member’s Content or otherwise; (vii) real or tangible property damage or bodily injury or death caused by the negligent or willful acts or omissions of the Indemnifying Party, its employees, subcontractors and agents in connection with this MPPA; (viii) any claims that the Freelancer Member was misclassified as an independent contractor; (x) any claims that a Business Member is somehow a sub-contractor of Acadium; (xi) any claims that Acadium is/was otherwise an agent or representative for either Member; (xii) any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Freelancer Member is/was misclassified as an employee (including, but not limited to, taxes, penalties, interest and legal fees of Acadium, and/or that Acadium is/was an employer or joint employer of Freelancer Member, and/or (xiii) claims under any Applicable employment and labour laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits, (collectively any actions, suits, or proceedings falling within (i), (ii), (iii) (iv), (v), (vi), (vii), (viii), (x), (xi), (xii) and (xiii) hereinafter referred to as a “Claim”) and shall indemnify and hold the Indemnified Parties harmless from and against any damages or costs (including reasonable attorneys' fees) awarded in to such third party against the Indemnified Parties by a court of competent jurisdiction in respect to any such Claim, subject to the conditions that the Indemnified Parties: (A) promptly give written notice of each Claim to the Indemnifying Party; (B) give the Indemnifying Party control of the defense and settlement of each Claim (provided that the Indemnifying Party may not settle or defend any Claim unless it unconditionally releases the Indemnified Parties of all liability and restrictions); and (C) provide to the Indemnifying Party, at the Indemnifying Party's cost, all reasonable assistance and co-operation in respect to each Claim. Notwithstanding the condition set out in paragraph (A), failure by the Indemnified Party to promptly notify the Indemnify Party of a Claim will not relieve the Indemnifying Party of its obligation to indemnify the Indemnified Party unless the Indemnifying Party is materially prejudiced in its ability to defend against the Claim as a result thereof. Additionally, and specifically, each Platform Member shall indemnify the Indemnified Parties from any and all claims, disputes, demands, losses, damages, costs, or liabilities of any kind (including, reasonable attorneys' fees) arising out or in connection with Member’s interactions, communications, dealings or transactions with other Members (including but not limited to interactions, communications, dealings or transactions as and between Freelancers and Businesses).
13.31 Exclusion of Consequential and Related Damages. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT SHALL ACADIUM OR PLATFORM MEMBERS HAVE ANY LIABILITY UNDER THIS AGREEMENT FOR ANY LOST PROFITS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE.
13.32 Aggregate Liability. EXCEPT FOR INDEMNIFICATION OBLIGATIONS, FRAUD, WILFUL MISCONDUCT, OR BREACH OF CONFIDENTIALITY AND ANY APPLICABLE CANCELLATION FEES, EACH OF ACADIUM AND PLATFORM MEMBERS’ ENTIRE AGGREGATE LIABILITY TO ANY OTHER PARTY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY MEMBER TO ACADIUM IN THE PREVIOUS 6 MONTHS, OR IF MEMBER DOES NOT HAVE A PAYMENT OBLIGATION AND/OR HAS NOT MADE PAYMENT TO ACADIUM, $100.00. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENSION PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
13.33 Limitations Reasonable. Each Member of the Platform agrees that the limitations of liability set out in this Section 13 are fair and reasonable in the commercial circumstances of this MPPA. This Section 13 shall apply, even in the event of a breach of condition, a breach of an essential or fundamental term, or an essential or fundamental breach of this MPPA.
13.34 Insurance. During the Term hereof, each Member shall maintain and carry their own insurance, which includes errors and omissions/professional liability.
14. General Provisions
14.1 Relationship of the Parties. Each Platform Member (Freelancer/Business) and Acadium are independent contractors. No entity shall be deemed to be an employee, agent, partner, joint venturer, franchisee, or legal representative of the other for any purpose under this MPPA and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other.
14.35 Notices. Any notice, request, demand, consent, or other communication provided or permitted hereunder to Acadium will be in writing and given by courier delivery, or sent by registered mail, postage prepaid to the Parties at Acadium’s registered address indicated at the start of this MPPA and to the applicable Platform Member by email through the Platform or to the physical address set out below and will be deemed to have been received on the date on which it was delivered or transmitted by facsimile or electronic mail, or on the fifth (5th) day next following the mailing thereof to the addresses provided herein or such other address as a Party may designate in writing from time to time.
14.36 Assignment. Platform Member may not assign any of its rights or obligations under this MPPA, whether by operation of law or otherwise, without Acadium’s prior written consent. Any attempt to assign its rights or obligations under this MPPA in breach of this section shall be void and of no effect. Subject to the foregoing, this MPPA shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.
14.37 Governing Law. This MPPA will be governed and construed in accordance with the laws of Ontario and the federal laws applicable therein, which will be deemed to be the proper law of this MPPA without regard to its conflicts of law principles. Any dispute arising from, connected with, or relating to this MPPA must be resolved before the courts in Toronto, Ontario, and Member hereby irrevocably submits to the original and exclusive jurisdiction and venue of those courts in respect of any such dispute with Acadium.
14.38 Dispute Resolution between Platform Members. The Parties shall, in the first instance, attempt to resolve any disputes amicably through email correspondence and telephone conference calls. Neither Party shall publicly make disparaging remarks about the other, including on social media or review websites. In case of any dispute arising under this Services Agreement which cannot be settled by reasonable discussion, the Parties agree that, prior to commencing any arbitration proceeding as contemplated herein, the Parties will first engage the services of a professional mediator agreed upon by the parties and attempt in good faith to resolve the dispute through confidential non-binding mediation. Each party shall bear one-half (1/2) of the mediator's fees and expenses and shall pay all of its own attorneys' fees and expenses related to the mediation. Failing resolution through mediation, each Party irrevocably and unconditionally agrees that the dispute shall be resolved through binding arbitration to be held in Ontario, Canada in accordance with the Ontario Arbitration Act. Each Party agrees that a final judgment by such arbitration is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties are free to mutually agree to choose and confirm the forum of arbitration (i.e. the arbitration institute that will conduct the arbitration) (the “Forum”).
14.39 Severability; Survival. If any provision herein is deemed or declared unenforceable, invalid or void by a court of competent jurisdiction, such provision shall be deemed to be deleted from this MPPA as though such provision had never been incorporated herein, and the other provisions contained herein will be enforced in accordance with their terms and shall remain in full force and effect. The terms and conditions of this MPPA that by their nature or expressly survive the expiration or earlier termination of this MPPA shall be deemed to survive the expiration or earlier termination hereof.
14.40 Entire Agreement. Platform Member and Acadium intend that this Platform Member Agreement together with the Terms of Use, the Usage Policy, Privacy Policy, and Services Agreement (if any), and all documents and agreements incorporated by reference therein: (i) constitute the final and binding expression of their agreement and the complete and exclusive statement of the terms related to the subject matter hereof and (ii) supersedes all prior negotiations, representations, and agreements related to said subject matter. If there is a separate agreement in place between Acadium and Platform Member regarding different subject matters (that is, any relationship outside of Transactions submitted through the Platform), such other agreements shall remain in place and shall not be affected by this MPPA
14.41 Remedies; Waiver. No failure or delay to exercise any right, power, or privilege provided under this MPPA or by applicable law will operate as a waiver. No single or partial exercise of any such right, power, or privilege will preclude any other or future exercise of any other right, power, or privilege. The remedies provided under this MPPA are cumulative and are not exclusive of any rights or remedies provided by law.
14.42 Updates to Agreement. Acadium reserves the right to modify this MPPA at any time by publishing the revised MPPA on the Platform and, for any material or substantive changes. The revised MPPA shall become effective within ten (10) Business Days of such publication on the Platform. In such event, Member’s express acceptance or continued use of the Platform after the expiry of the notice period of ten (10) Business Days (being weekdays excluding any statutory holidays in Ontario), shall constitute acceptance to be bound by the terms and conditions of the revised MPPA. For the avoidance of doubt, any minor or cosmetic changes to the MPPA (e.g., typographical changes, changes to Acadium’s business address, etc.) will take immediate effect from the date of publication on the Platform,
14.43 Questions/Contact. If you have any questions about this MPPA or if you wish to receive any additional information, provide feedback or raise any concerns, please contact us at: info@app.acadium.com