Online electronic approval of a project estimate (ie. “PPC Proposal”) indicates the acceptance of the terms and conditions set forth in this agreement (“Agreement”) by an authorized representative of the client entity (“Client”).
Provider hereby represents and warrants that it has (a) qualified personnel, appropriate facilities, and adequate resources in order to discharge the Services in a timely and efficient manner, and (b) the necessary experience required to perform the Services in a competent and professional manner. EXCEPT AS OTHERWISE STATED IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Provider NEITHER ASSURES NOR ASSUMES ANY LIABILITY TO ANY PERSON OR ENTITY FOR THE PROPER PERFORMANCE OF SERVICES. Provider DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS COMPLETE OR FREE FROM ERROR, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICE, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, OR OTHER CAUSE.
Provider SHALL HAVE NO LIABILITY UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT FOR ANY LOSS, LOSS OF PROFIT OR REVENUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF Provider IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
Customer agrees to indemnify, defend and hold Provider harmless from and against all third party claims, losses, liabilities, costs and expenses arising out of or related to the use of the Service by the Customer, or attributable to Customer’s breach of this Agreement, provided that Provider gives Customer prompt written notice of any such claim.
The performance by Vendor of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between Vendor and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
During the period of this Agreement and for twelve (12) months thereafter, neither party will solicit, directly or indirectly, the employment of any employee, former employee, subcontractor, or former subcontractor of the other party that (a) with respect to Vendor, performed the Deliverables for Client, or (b) with respect to Client, oversaw the performance of the Deliverables. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party on the Effective Date of this Agreement. Both parties agree that nothing contained herein shall prohibit the other party from employing general recruiting strategies, such as placement of advertisements, posting of positions on either party’s websites and other similar methods.
Either Party may terminate any project covered by a Website Proposal with at least 10 days’ written notice to the other Party. Unless otherwise agreed to in writing by the Parties, Client shall, within 30 days of the date of termination, pay Vendor for all work performed up to the date of termination, based either on the quoted price per deliverable in the Website Proposal or, if no such definition was made, based on Vendor’s standard hourly rate of $150, plus reimbursement for any project expenses. If monies paid by Client to the Vendor under the Website Proposal exceed the amount due to Vendor under this Agreement, Vendor shall refund the difference to Client within 30 days of the date of termination.
If Client fails to pay any invoice within 60 days of due date, the Vendor shall have the right to withhold further work. Further, if Client fails to pay any website hosting services invoice within 90 days of due date, Vendor may disable the website for which the hosting fees apply until all such invoices are paid.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party except in cases of merger or any person or entity acquiring all or substantially all of that party’s assets or stock. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein. Nothing in this Agreement shall be deemed to create any rights in third parties or create any obligations of a party to such third parties.
This Agreement shall be governed by the laws of the Province of British Columbia and the Parties shall attorn to the exclusive jurisdiction of its courts. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon either party unless made in writing and signed by a duly authorized representative of such party and no failure or delay in enforcing any right will be deemed a waiver.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
If either party is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, computer virus, war, accident, or other acts of God, then upon written notice to the other party, the requirements of this Agreement, or the affected provisions hereof to the extent affected, shall be suspended during the period of such disability. During such period, the party not prevented from complying may seek to have its needs (which would otherwise be met hereunder) met by the other without liability hereunder. The party prevented from complying shall make all reasonable efforts to remove such disability within ten (10) days of giving such notice and the party not prevented from complying pursuant to this Section may terminate this Agreement, without liability, upon expiration of such ten (10) day period. However, Vendor agrees to use commercially reasonable efforts to protect the Deliverables, information and the Deliverables it has created for Client from any force majeure event including ensuring the appropriate information is backed-up and stored at a safe site on a reasonable basis to help protect from such unforeseen events.
The waiver by any party of any breach of the covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
Any notice or other communication which may be permitted or required under this Agreement shall be delivered personally, or by facsimile or other electronic means, or sent by the United States registered or certified mail, postage prepaid, addressed set forth in the introductory paragraph or to any other address as either party may designate by notice to the other party. Notice given by facsimile or other electronic means shall promptly be confirmed by registered or certified mail or overnight courier shall be deemed to be received upon verification that such facsimile was received by the other party. Notice by registered or certified mail or overnight courier and shall be deemed to be received two (2) days following the date of mailing, provided such notice is properly addressed and sufficient postage is affixed thereto, or the actual date of receipt, whichever is earlier.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. For purposes of this Agreement, signatures delivered by facsimile transmission or other electronic means will be treated in all manner and respects as originals.
The Provider will act as an independent contractor under the terms of this Agreement and to perform specific Services. The Provider shall retain the power and authority to supervise and control performance of the Services by Provider’s employees, including the power to discipline, hire and fire Provider’s employees. Nothing in this Agreement shall be construed to (a) give either Party the power to direct or control the daily activities of the other Party, or (b) constitute the parties as employer and employee, franchisor and franchisee, licensor and licensee/sublicensor, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. Provider recognizes that the needs of Customer may change over the course of this Agreement, and will accommodate such changing needs with modification of the specified Services by mutual agreement based on an equitable shift in work effort.
Customer shall make available to Provider such information as is reasonably required for Provider to effectively fulfill and perform the Services. Such information includes, but is not limited to, monthly updates on the performance of Services for the duration of this Agreement or any amendments thereto. Notwithstanding the foregoing, Customer agrees to make its team available to Provider according to the relevant areas of responsibility as needed for completing the Scope of Work or Services.
Customer shall deliver all information necessary for Provider to perform the Services listed in Exhibit A. In the unlikely event, that Customer cannot deliver the information to Provider, then Customer shall not hold Provider liable for the failure of execution of Services listed in Exhibit A.
The Proprietary Information is and shall remain the sole and exclusive property of Provider. Customer shall have only the limited rights with respect to the Proprietary Information expressly granted in this Agreement, and all rights not expressly granted by Provider are reserved. Customer agrees that only Provider shall have the right to alter, maintain, enhance or otherwise modify the Proprietary Information. Customer shall not disassemble, decompile, manipulate or reverse engineer the Proprietary Information and shall take all necessary steps to prevent such disassembly, decompiling, manipulation or reverse engineering of the Proprietary Information. Under no circumstances shall Customer sell, Services, publish, display, copy, distribute, or otherwise make available the Proprietary Information in any form or by any means, except as expressly permitted by this Agreement, including without limitation the transfer to a third party or, if not expressly prohibited by this Agreement, as allowed under the fair use provision of the Copyright Act, 17 U.S.C. § 107. Customer will take all reasonable steps, in accordance with the best industry practices, to protect the security of the Proprietary Information and to prevent unauthorized use or disclosure. The Customer is responsible for all access to and use of the Proprietary Information by Customer’s employees or agents or by means of Customer’s equipment or Customer’s Provider usernames and passwords, whether or not Customer has knowledge of or authorizes such access or use.
Provided Vendor receives all payments from Client that are not disputed, the Vendor shall grant to Client a license to utilize the Vendor’s Background Technology (as defined below).
As between Client and Vendor, Vendor will retain ownership of all right, title and interest in or to any intellectual property that Vendor can substantiate were either owned or developed by Vendor prior to, or independently from, its engagement hereunder (the “Background Technology”). Background Technology shall include, without limitation, various pre‐existing development tools, routines, subroutines and/or other programs, data, and materials that Vendor may use or implement in the development of the marketing campaign. To the extent that Vendor incorporates any Background Technology into the Deliverables or any third party technology, Vendor shall identify such Background Technology in writing and hereby grants to Client a worldwide, non-exclusive, non-transferable, royalty-free, right and license to use, copy, display and create derivative works of the Background Technology and third-party technology as necessary to use and modify the Deliverables, the Deliverables and the website developed by Vendor pursuant to this Agreement. However, upon sale or transfer of the Client’s business, this license shall be transferable to the new owner of the Client’s business.
