Evolve Thought | Media Group Website
Terms of Service Policy.
As of/in effect by: April. 2010
(Client of Thought Media, the “Purchaser“)
(Thought Media, the “Developer“)
This Web Site Development Agreement (“Agreement”) sets out the terms under which Developer agrees to provide and Purchaser agrees to accept and pay for the consulting services and related deliverables described in the project criteria and Statement of Work (Schedule A) which is supplied prior to beginning any development project.
1. Scope of Services
1.1 Developer will perform the Services and deliver the Deliverables specified in the Statement of Work and in accordance with the deadlines, deliverables, procedures and performance criteria set out in the Statement of Work.
1.2 From time to time, the Parties may agree to additional work to be performed under to this Agreement. Additional work shall be set out in a statement of work in substantially the same form as the attached Statement of Work.
2. Fees and Payment Terms
2.1 Purchaser agrees to pay the fees in the amounts and manner set out in the Statement of Work.
2.2 Developer shall invoice Purchaser for Services performed and Deliverables delivered according to the payment schedule in the Statement of Work. All invoices are due and payable as per the payment terms and upon receipt.
2.3 Each invoice will state separately applicable taxes relating to Services provided under this Agreement. Purchaser is responsible for the payment of all taxes.
2.4 If the delivery date of any Deliverable falls after the date specified in the delivery schedule set out in the Statement of Work, Purchaser may suspend payment of any amount payable, as shown above, until such Deliverable has been delivered by Developer to Purchaser, unless non-delivery has been authorized in advance, in writing, by Purchaser.
2.5 Any services requested by Purchaser in writing and provided by Developer outside the scope of the Services specified in a Statement of Work shall be billed to Purchaser at the Developer’s hourly rate set out in the Statement of Work. Prior to the commencement of such work, Developer shall confirm that the work is outside the scope of the Services, shall provide an estimate of cost of such work, and must wait for written approval from Purchaser before proceeding. Whenever feasible, such work shall be described in a statement of work in accordance with section 1.2.
2.6 Overdue invoices 15 days past the due date, based on completion of work, shall be placed into collections. Furthermore a 10% monthly interest rate shall be added to the amount owed in perpetuity until paid in full by the Purchaser. Invoices 60 days past due shall result in legal action requiring all overdue amounts, plus interest, plus associated legal costs.
3. Proprietary Rights
3.1 All right, title and interest, including all intellectual and industrial property rights, in and to all Deliverables, shall be and shall remain the property of the Purchaser.
3.2 All right, title and interest, in all systems, software, tools, utilities, methodologies, inventions, specifications, techniques, know-how, reports, databases, courses, hardware and other materials, including, without limitation, all related intellectual property rights and Confidential Information, which are developed by the Developer or its affiliates in connection with Developer’s performance of the Services belong to the Purchaser.
3.3 To the extent that Developer may have any right or interest in the properties described in sections 3.1 or 3.2, Developer hereby sells, transfers, conveys and irrevocably assigns in perpetuity, all such right and interest worldwide to the Purchaser. Developer agrees to sign such documents as may be reasonably requested by the Purchaser to fully assign all such right and interest to Purchaser, and to waive all moral rights to properties in favour of Purchaser.
3.4 Purchaser hereby grants to Developer a non-exclusive, non-transferable, personal license to use any Purchaser-owned technology provided pursuant to this Agreement only for the purpose of fulfilling its obligations under this Agreement.
4. Privacy and Confidentiality
4.1 “Personal Information” means information about an identifiable individual.
4.2 “Confidential Information” means any information that the Purchaser discloses to the Developer pursuant to this Agreement, including without limitation all commercial, financial, sales, marketing, intellectual property, personnel, technological and Purchaser information, any Personal Information, and any information regarding this Agreement. It does not include information which:
(a) is disclosed to the Developer in good faith by a third party who had a right to make such disclosure;
(b) is made public by the Purchaser, or is established to be a part of the public domain otherwise than by Developer’s breach of his obligations hereunder; or
(c) is required to be disclosed by law or by a valid order of any governmental body or competent securities regulatory authority, provided that, where lawful, the Suppler shall give the Purchaser reasonable notice of such disclosure and shall take all reasonable steps available to maintain the information in confidence.
4.3 The parties agree to (i) comply with all applicable Canadian privacy laws and their respective corporate privacy policies; and, (ii) establish security safeguards appropriate for the sensitivity of Personal Information in their possession or control.
4.4 Developer acknowledges that in performing its obligations under this Agreement, he may come into possession of Confidential Information in the possession or control of Purchaser. Developer agrees to use the Confidential Information only with the consent of Purchaser and only for the purposes of this Agreement. Developer agrees to take reasonable care to safeguard the Confidential Information from inappropriate use or disclosure, which care shall be no less than the care he takes to safeguard his own confidential information.
4.5 Upon termination of this Agreement, each party shall:
(a) either destroy or return to the other party all originals and copies of any and all Personal Information and Confidential Information belonging to the other party which may be in its possession or control, excluding one copy held for archive purposes; and
(b) certify in writing to the other party that the actions required by subsection (a) above have been completed.
4.6 Developer agrees that any violation or threatened violation of section 4.4 of this Agreement will cause irreparable injury to the Purchaser, entitling the Purchaser to obtain injunctive relief in addition to all legal remedies.
5.1 Developer hereby represents and warrants to Purchaser as follows, and acknowledges that Purchaser is relying upon such representations and warranties in entering into this Agreement:
(a) the Deliverables developed, produced or provided to Purchaser by Developer under this Agreement do not infringe any Canadian or foreign patent, copyright, trademark or other proprietary right of any person;
(b) any code developed by Developer pursuant to this Agreement will be an original work developed solely by Developer and, except for works created by the Purchaser or as otherwise described in the Statement of Work, will not contain works created by any other person;
(c) the work performed by Developer with respect to the development of the Web Site and Deliverables contains no contaminants or time bombs or viruses including any code or instructions that may be used to access, modify, delete, damage, or disable the Web Site.
5.2 For website development for a period of ninety (90) days following delivery of the Deliverables, Developer warrants that the Deliverables will substantially conform to the specifications set out in the applicable Statement of Work or, where not specified in the Statement of Work, in the accompanying documentation delivered by Developer. This warranty does not apply to the extent that a change to a Deliverable made by the Purchaser or a third party causes the failure of the Deliverables to substantially conform to the specification.
5.3 If Purchaser reports an error, omission or defect in any Services or Deliverables that is not attributable to a change to a Deliverable made by the Purchaser or a third party during the applicable warranty period, Developer will use all reasonable efforts to correct or re-perform Services and to correct or replace any Deliverables.
5.4 If Purchaser has otherwise subscribed to a Maintenance and Support Service from the Developer the terms of a Warranty shall be subject to change as set out in the terms of the Maintenance and Support package.
5.5 Developer makes no representations or warranties with respect to the Services or any Deliverables except as expressly set out in this Agreement or in the applicable Statement of Work.
6. Limitation of Liability
6.1 Developer’s sole liability and Purchaser’s exclusive remedy in relation to any claim concerning performance or non-performance by Developer of its obligations under this Agreement shall be the recovery of its direct damages, up to a maximum equal to the aggregate of the amount paid by Purchaser for the Services.
6.2 Developer shall not be liable for any special, indirect, consequential, punitive or exemplary damages whatsoever resulting from loss of use, data or profits, failure to realize expected savings, inability to use any computer program, arising out of or in connection with this agreement or the use, inability to use, performance or non-performance of any Deliverables, whether in an action in contract or tort including but not limited to negligence, even if Developer has been advised of or foresees a possibility of, any of these damages occurring.
6.3 Sections 6.1 and 6.2 do not apply in the event of a breach of sections 4.4 or 5.1.
6.4 No employee, officer, director, representative or agent of either party shall bear any liability, either direct or indirect, under this Agreement except for any claim arising out of an act of willful misconduct, fraud, gross negligence or recklessness by any of them.
6.5 These limitations and exclusions shall survive the expiration or termination of this Agreement regardless of cause, including termination due to fundamental breach or breach of a fundamental term.
7.1 Developer will indemnify, defend and hold harmless Purchaser at Developer’s own expense against any threats, claims, actions, damages and costs (including but not being limited to reasonable legal fees and costs) arising out of infringement of patents, copyrights, trade secrets, registered designs or other intellectual property rights of third parties against and to the extent such claim, demand, suit or action alleges that the Deliverable(s), or the use of such Deliverable(s) infringe upon any patent, trade-mark, copyright, industrial design, trade secret or any other intellectual or industrial property right of any third party, provided that Purchaser notifies Developer in writing of such claim, and that the Developer has complete control of the defense or settlement, or both, of the claim. The Developer will pay all damages and costs awarded against the Purchaser, but the Developer will not be responsible for any cost, expense or compromise incurred or made by the Purchaser without the Developer’s prior written consent. Developer shall have no liability under this sub-clause 7.1 if and to the extent the infringement results from a modification of the Deliverable by Purchaser.
8. Term and Termination
8.1 The term of this Agreement will be from the Effective Date of the Statement of Work to that date which all services to be provided hereunder are completed and accepted hereunder, unless terminated as provided hereunder, or by mutual written agreement of the parties.
8.2 If Developer or Purchaser fails to comply with any material term or condition of this Agreement the other party may give written notice of default. If the default complained of is not cured within thirty (30) days following receipt of written notice, the notifying party shall be entitled, in addition to any other rights it may have under this Agreement or otherwise at law, to immediately terminate this Agreement by giving written notice to the other party.
8.3 Purchaser may cancel any Statement of Work at any time on not less that five (5) days notice to the Developer, in which case Purchaser shall pay the Developer for time spent prior to the notice of cancellation at the rates set out in the Statement of Work.
8.4 Unless the parties otherwise agree in writing, the provisions and restrictions described in Sections 0, 0, 5, 5.4, and 8.5 shall survive any termination or expiration of this Agreement.
8.5 In the event the Agreement is cancelled or terminated, Developer shall promptly deliver to Purchaser all the Deliverables existing or partially completed upon the cancellation or termination of the Agreement, independent of the reasons for cancellation or termination. The developer will summarize the hours invested into creating the deliverables in a detailed report and the purchaser will be billed for the hours based on the hourly rate set in the statement of work.
9.1 Entire Agreement. This Agreement, together with each applicable Statement of Work, constitutes the entire agreement between the parties with respect to the Services rendered and Deliverables provided hereunder. It supersedes any other agreement or discussions, oral or written, express or implied. No provision of this Agreement may be changed or waived except by a written amendment signed by both parties. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from the Agreement and the other provisions shall remain in full force and effect.
9.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of theProvince ofOntario.
9.3 Dispute Resolution. If a dispute arises with respect to any matter arising out of this Agreement, and the parties are otherwise unable to resolve the matter, the matter shall be referred to binding arbitration by an impartial third party acceptable to both parties. The Arbitration shall be conducted in accordance with the Ontario Arbitration Act. The decision of the arbitrator shall be in writing and shall be binding on each of the parties hereto and form a part of this Agreement.
9.4 Notices. Any notice to be made or given hereunder shall be in writing and shall be forwarded to the respective party at the address set out in this Agreement or such revised address as such party may, from time to time, designate. Notice shall be given (a) by courier, effective at the time of actual delivery; (b) by facsimile, effective at the time of transmission if transmitted during the recipient’s regular business hours and otherwise effective at the commencement of business on the next business day; or (c) by registered or certified mail, effective on receipt.
9.5 Successors and Assignment. The rights and liabilities of the parties hereto shall bind and inure to the benefit of their successors, receivers, managers, and trustees and permitted assigns, as the case may be. Developer may transfer or assign its rights and obligations under this Agreement, in whole or in part, only with the prior written consent of Purchaser. Any attempted assignment in violation of the provisions of this Section shall be void.
9.6 Force Majeure. Neither party shall be responsible for delay or failure to perform any portion of this Agreement if such failure is for any cause beyond its reasonable control. For greater certainty, any such causes will include but will not be limited to extreme weather conditions, war, civil commotion, acts of military authority, explosion, labour disputes, freight embargoes, or delays caused by common carriers. All such causes will delay the time for performance of such portion of this Agreement as is affected thereby for a period equal to the delay resulting from such causes and a reasonable period thereafter to remedy the situation, provided that the party claiming the benefit of this paragraph shall use its best efforts to remove the cause of the delay as soon as possible in the circumstances.