You (the “Customer”), and nine10 Incorporated (the “Agency”), hereby agree to the following terms & conditions:
Availability
Agency’s hours of operation are Monday to Friday from 9:00am to 5:00pm. Availability of individual members of Agency will vary from day to day and is not guaranteed at any point. Agency will report directly to the primary contact on the account for all matters pertaining to the Agreement or the administration and execution thereof.
Engagement of Services
Customer has agreed to engage and purchase the services of the Agency, and the Agency has agreed to provide its services, subject to the terms and conditions herein.
Performance Standards
Agency will provide Customer with timely and professional services in accordance with the commonly accepted professional standards of the industry. Timelines for specific projects and tasks shall be agreed upon by Customer and Agency on a case-by-case basis.
Required Materials, Project Delays & Project Restarts
Customer understands that Agency will require certain information, content, pictures, materials, approvals, and/or payments from Customer (herein referred to as the “Required Materials”) in order to complete the project within the agreed timelines, specifications and quality standards. Agency is not responsible for delays, missed deadlines, or other performance/quality issues caused by Customer not delivering the Required Materials in a timely fashion. Customer understands that Agency incurs ongoing costs to keep a project active for Customer, and the longer the project goes the more it will cost Agency to deliver. Should there be a delay (typically 2 weeks or more) in Customer providing Required Materials, Agency may elect to move Customer’s project to the back of their schedule to allow room for other projects. Agency will then need to complete their commitments to those projects before work on Customer’s project can resume. Should this happen, Customer understands and agrees that Agency will not be able to immediately resume work upon receiving Required Materials.
Term of Agreement
This Agreement shall begin upon Customer’s acceptance of the terms and shall continue in perpetuity to govern all current and future interactions between Customer and Agency, subject to future revisions of the terms as determined by Agency. Further, should acceptance of this Agreement happen after a project has started, this Agreement shall be retroactively applied to all previous interactions between Customer & Agency to the start of the project, or the first contact between Customer and Agency, whichever comes first.
Billing Policies – General
Agency’s default hourly rate is $125 per hour.
Specialized consulting services, as well as high-level strategic and planning services as part of some projects, are billed at a rate of $250 per hour.
Urgent requests outside of our normal office hours, such as on evenings and weekends, are billable at a rate of $375 per hour with a minimum 1 hour charge per request.
All estimates and quotes provided by Agency are not fixed-price or guaranteed-price quotes unless specified in writing.
Any or all of the following actions by Customer constitute acceptance of a proposal, estimate or quote, and all of the terms specified therein, including the nine10 Incorporated Standard Terms of Service:
Signing the estimate, quote, proposal, or separate contract
Payment of the project deposit
Approval to start the project provided via written or electronic communication, including fax or email.
Payment methods accepted include Cheque, Visa, Mastercard and American Express.
Payments are due within 15 days of invoice or upon the terms agreed upon in writing at the time of sale.
Production costs & third-party expenses, including but not limited to, travel, printing services, shipping, stock images/sounds/video, financial institution service fees and media costs are not included in the service fees unless specified in writing.
In the event Customer fails to make any of the payments set forth in this Agreement within the time prescribed (including payments owing to Agency’s contractors and partners), Agency has the right to:
Withhold, revoke, destroy, and/or otherwise block usage of and/or access to any and all products or services performed for or on behalf of Customer, including but not limited to web hosting, domain management, and email services, regardless of whether these services were paid for previously or not;
Pursue all legal remedies available to Agency to collect the outstanding amount, including any and all expenses incurred in the process of collection, including but not limited to, attorney and collection agency fees.
Billing Policies – Project-Based Work
The project deposit, and fees paid for work performed during the project are non-refundable.
Projects will not be scheduled until the required deposit has been provided.
Projects will pause at each milestone until the required approval and payment has been provided to continue with the next phase of the project.
Billing Policies – Printing
Unless otherwise agreed in writing between Customer and Agency, payment for printed materials will be due in full at the time of order. The print order can be placed only after full payment is received. Agency reserves the right to hold printed items until full payment is provided.
Billing Policies – Markups for Third-Party Services
Agency reserves the right to charge a markup for third-party services purchased on the Customer’s behalf when:
Agency pays for the services on behalf of the Customer, and/or,
Agency enters into a contract for services on the Customer’s behalf.
The amount of the markup shall be no less than 15% of the total third-party service cost.
Billing Policies – Hosting Services
Hosting of Customer’s website or email by Agency (“Hosting Services”) is subject to the following policies, unless otherwise specified in writing:
Available payment methods for Hosting Services include automated credit card payments, yearly billing by invoice (in advance for the year), and pre-authorized debit withdrawals.
Hosting fees are billed on the first day of each month in advance for the month. Hosting fees for new plans start on the first day of of the month following the launch of Customer’s website.
Unless otherwise specified in writing, and with the exception of Realtor Website on a fixed term hosting contract described herein, Hosting Services are provided on a month-to-month basis. Customer may cancel hosting services by sending a written request to Agency from an authorized contact at Customer’s company. The request must arrive at least 5 business days prior to the end of the month in order to be cancelled for the following month.
Certain Realtor Website products have a fixed term hosting contract lasting 1, 2 or 3 years with a set price per month. Customers who own a Realtor Website with a fixed term hosting contract may still cancel their hosting services at any time, and upon cancellation, Agency shall invoice Customer for, and Customer shall immediately pay, fifty percent (50%) of the remaining value of the unused term of the contract, to compensate Agency for their up-front development costs which were discounted at the time of sale in exchange for the fixed-term hosting contract.
The included domain name registration and/or renewal included with Hosting Services is limited to one domain and only applies when the domain name is located at, or transferred to, Agency’s registrar and managed under Agency’s account at the registrar. Customer is responsible to pay registration, renewal and service fees for any domains that are not located at Agency’s registrar and/or not managed under Agency’s account at the registrar. Customer understands that Agency’s registrar account is private and Customer will never be given access directly to Agency’s registrar account.
Agency is not responsible to hold, manage or renew domains, websites, or email accounts on behalf of Customer which (a) Customer does not have an active hosting agreement with Agency to manage, and/or (b) Customer has not paid Agency the required fees to maintain their hosting agreement, and/or (c) Customer’s account is not in good standing with Agency. Customer understands that Agency may at any time turn off renewal of a domain name, email or website or immediately cancel registration of a domain name, email or website in Agency’s possession that meets this criteria. Agency will make a reasonable effort to contact customer to offer them an opportunity to resolve the problem and/or take possession of a domain name prior to it being dropped by Agency. Such reasonable effort may constitute phoning the customer and/or emailing them at their last known phone number or email address. Agency is not responsible to further investigate should these methods of communication fail. If Customer does not receive the message(s) for any reason, or fails to reply or call back, or fails to take the required actions to resolve the situation (such as paying their bill), Agency may continue with the cancellation of services.
Domain names which are not renewed in time with the registrar will enter a Grace Period. The Grace Period is a period of time the registrar provides to pay the renewal fee to restore the domain prior to it being released back to the public. The registrar may charge an additional penalty to restore a domain that is in the Grace Period, and as such, Agency shall bill this fee, plus an administrative fee of their own, back to the Customer to restore the domain. Customer understands and agrees that additional fees will apply from the registrar and Agency to restore the domain upon their failure to renew a domain in time as per the process described in the previous clause.
Agency will strive to make daily backups of websites and website data hosted for Customer, however, due to the nature of technology the timeline, schedule and reliability of hosting backup services is not guaranteed. Agency reserves the right to charge a fee (as determined by Agency) for the restoration of any backup(s).
Agency reserves the right to set and/or adjust prices for Hosting Services at any time and for any reason with thirty (30) days written notice to Customer. Agency may elect, at their sole discretion, to continue to offer Customer legacy pricing after a price change, provided that Customer’s account is in good standing and all fees for Hosting Services have been paid to date.
The following events may result in Agency cancelling any legacy pricing for Hosting Services extended to Customer by Agency:
Customer’s account goes more than thirty (30) days overdue for any payments owed to Agency;
Payments for Hosting Fees are missed or delayed for any reason;
Customer changes the type of website being hosted, for example, upgrading a Simple Websites Basic website to a WordPress website;
The nature or type of Hosting Services provided is changed, such as changing the hosting plan from regular to SSL hosting.
Any and all fees paid by Customer to Agency for Hosting Services are non-refundable.
Revision Policy
Unless otherwise specified in writing at the time of sale, Customer shall be entitled to one round of revisions at each approval stage of the project.
Additional rounds of revisions beyond the limit specified either in writing or as specified in this Agreement will be billable at the applicable hourly service rate as specified in Section 5 above. Any such charges will be invoiced separately and shall be in addition to any previously agreed upon amounts or quotes.
Suspension & Cancellation
Either party reserves the right to suspend or cancel engaged work or services upon immediate written notice. Upon suspension or cancellation of Agreement, Agency reserves the right to collect payment for any unpaid balances owed by Customer, and such payment shall be due immediately upon invoice. Agency reserves the right to withhold any and all project files, deliverables and further services until such payment is provided. Upon payment in full of any amounts outstanding, the normal terms of ownership shall apply as outlined in Section 12, Ownership of Deliverables. Should Agency elect to refund any of the fees paid by Customer for any reason, any work products created by Agency that were associated with the refund shall remain the sole and exclusive property of Agency, and Customer shall destroy any copies of Agency’s work product or materials in their possession upon receiving the refund. Further, Customer shall not use, display, distribute, transmit, copy, store or otherwise in any way enjoy or benefit from the refunded work product, nor shall they use it or the ideas contained in it in any future design or as the basis of any future design.
Ownership of Deliverables
Upon successful completion of, and payment in full, for the project and any amounts outstanding to Agency and Agency’s contractor(s) and partner(s) involved in the project, Agency will assign and/or transfer ownership rights to the Deliverables to the Customer according to the terms described below. Any and all applicable rights, titles and interest in Deliverables not expressly assigned in writing to Customer shall remain reserved by Agency.
Graphic Design Ownership Terms
The Customer will own the rights to the completed design work created as part of the Deliverables. Unless specified in writing at the time of sale, the original, editable files for the design (herein the “Source Files”) shall not be provided to the Customer as part of the Deliverables. Customer is entitled to receive one (1) copy of the Source Files upon payment in full of any outstanding fees owed to Agency. Agency reserves the right to charge a fee for extracting and delivering the files. Timelines for provision of the Source Files may vary and are subject to Agency’s workload, schedule, availability of staff, and administrative process.
Website Ownership Terms – General
Regardless of the type of website, Customer shall own the following parts (herein referred to as “Customer-Owned Website Data”):
The final outputted HTML & CSS template to the website as rendered by the web browser.
All of the text, pictures, and information input into the website by the Customer, or by Agency on behalf of Customer in the course of the project.
Any and all rights to pre-existing trademarks, branding or design elements used in the website which are owned by and provided to Agency by Customer.
Customer may request a copy of any part of, or all, of Customer-Owned Website Data at any time. Agency reserves the right to charge a fee to extract and provide the data. Timelines for provision of the Customer-Owned Website Data may vary and are subject to Agency’s workload, schedule, availability of staff, and administrative process. Agency shall determine which format(s) Customer will receive the data in. Any changes to the format or further processing of the data requested by Customer may incur additional charges.
In the event of a cancellation of hosting services, Customer will have ten (10) business days to request a copy of any Customer-Owned Website Data from the date that Agency received the original cancellation request. After this time period, Agency may delete or destroy the data, after which it shall not be recoverable. Customer agrees that their failure to request a copy of any Customer-Owned Website Data within the specified timeframe will result in the Customer automatically, permanently, and irrevocably waiving their rights to obtain any such data.
Domain Name Ownership Terms
Customer and Agency agree that any domain name(s) registered on behalf of Customer by Agency, or transferred to Agency to manage on behalf of Customer, are and will remain the sole legal and exclusive property of Customer at all times. Customer understands and agrees that Agency may populate the Registrant, Administrative, Billing and Technical contacts with Agency’s contact information to improve their ability to efficiently manage the domain name(s) on behalf of Customer, but that any such changes to the domain name(s) contact information does not constitute a transfer of ownership of the domain name(s) from Customer to Agency. Agency agrees that their role in possessing Customer’s domain name(s) under their registrar account is limited to stewardship and management only. Customer may at any time, for any reason, ask to repossess their rightfully owned domain name(s) which are under the stewardship of Agency, and Agency shall comply with such requests and in a reasonably diligent timeframe. Customer agrees that Agency may hold the domain name(s) until any monies owing to Agency by Customer are paid in full, prior to releasing the domain name(s). Customer agrees that Agency will transfer possession of the domain name(s) to Customer via the process of an Account Change on the GoDaddy.com website. This will require Customer to provide Agency with their existing GoDaddy.com account number and administrative email address (or create a free account and provide the same). After Agency receives the required information, Agency shall initiate an Account Change request to move the domain name(s) into Customer’s account on GoDaddy.com. Customer agrees that during this process, they will need to complete steps and approvals issued by GoDaddy.com and their failure or delay in doing so shall hinder, delay, or block their ability to repossess their domain names. Agency is not responsible for any such delays, however, Agency will not perform any actions to cause any such delays intentionally. Customer is entitled to the transfer of the first domain name using the process described at no charge, and any additional domain name(s) transferred to Customer shall be subject to a reasonable service fee per domain based on Agency’s current hosting & support rates, which in no event shall exceed $50 per domain.
Website Ownership Terms – WordPress Websites
With the exception of specific fonts, plugins or software as outlined in (13)(e), (13)(f), (13)(g), and (13)(h), websites built by Agency for Customer on open source software such as WordPress are not subject to licensing restrictions by Agency. Customer is entitled to receive a copy of their website files, provided their account is in good standing. Agency reserves the right to charge a fee for extraction and delivery of the files. Timelines for provision of the files may vary and are subject to Agency’s workload, schedule, availability of staff, and administrative process. Additional requests for copies of the website files shall be subject to additional charges. Agency reserves the right to charge a fee for any and all additional service(s), assistance, or product(s) provided to Customer along with the website during the transfer.
Website Ownership Terms – Realtor Websites with MLS Listings
At no time will Agency release the code for the MLS Listings Engine used to power the display and search of MLS real estate listings on Realtor Websites to Customer or any third party. The MLS Listings Engine is a proprietary invention of Agency which has taken significant time and resources to develop. Further, use of the MLS Listings Engine is also subject to the terms, conditions, and restrictions applied by the Grande Prairie & Area Association of Realtors in the use of the MLS data and Matrix databases. As such, Customer agrees that they will never receive a copy of the original source code for the MLS Listings Engine plugin used in Realtor Sites. Should Customer own a realtor website, and request a copy of such site to host on their own, the site will be provided without the MLS Listings Engine plug-in installed. The MLS Listing Engine is and will remain the sole intellectual property of Agency at all times, and Agency reserves and retains all rights including copyright, trademark, patent (including the right to patent), and moral rights to the software or any part of the software, including its design and interface as seen by the public. The MLS Listings Engine cannot be embedded into another website, via iframe or any other method, without explicit written permission of Agency. Agency reserves the right to charge a licensing fee for any unauthorized usages (whether embedded via iframe or otherwise) of the MLS Listing Engine. Customer will not tamper with or reverse engineer any part of the MLS Listings Engine, or its protective systems that prevent it from being embedded in another website. Should Agency discover that Customer has tampered with such systems and/or has embedded, or otherwise used, the MLS Listings Engine in a manner not approved by Agency, they may charge the Customer, and Customer agrees to pay immediately upon receipt of invoice, a fee of up to the initial price of their website, or $7,500, whichever is greater, plus a fee equivalent to the monthly hosting fee of their website for each month the MLS Listings Engine has been embedded or used in an unapproved way.
Website Ownership Terms – Proprietary Software
Software developed by nine10 Incorporated and provided for use by the Customer, including but not limited to, MLS LISTINGS ENGINE, WEBADMIN, FLAUNTOMATIC, and SIMPLE WEBSITES, and any customizations or modifications made to the same, will be subject to the terms of “nine10 Incorporated Software License Agreement for All Products” located at
https://www.nine10.ca/licensing.
Website Ownership Terms – Third-Party Premium Themes & Plugins
Websites built by Agency for Customer may include themes, plugins and software developed by a third-party which have yearly (or ongoing) license costs (“Premium Plugins”). Such plugins require the payment and renewal of fees to a third-party developer in order to obtain a license key/code to use the plugins (“Premium Plugin License Key”). Examples of such Premium Plugins may include, but are not limited to: Gravity Forms, Envira Gallery, Elementor Pro, Ultimate Add-ons for Elementor, The Events Calendar Pro, Astra WordPress Theme, and other third party plugins and/or themes which have a yearly cost from the original developer to use or receive support/updates. During the build of the website, and as long as Customer is actively hosting their website with Agency, and the Customer’s account is in good standing with Agency, Agency shall install Agency’s Premium Plugin License Key(s) for Premium Plugins on Customer’s website to keep subscriptions to updates & support for Premium Plugins active. Agency reserves the right to charge a separate for the renewal of any such Premium Plugin License Key(s), and any such amounts shall be agreed to in advance by Customer and Agency. Agency shall install the Premium Plugin License Key(s) into the Premium Plugins in an area not accessible to Customer, and at no time will Customer be provided Agency’s Premium Plugin License Key(s) or access to Agency’s account at the third-party provider directly. Agency’s Premium Plugin License Key(s) and account with the third-party provider shall remain the sole and exclusive property of Agency, and nothing in this agreement constitutes a transfer or assignment of right, title, interest, use or ownership of Agency’s Premium Plugin License Key(s). Should Customer choose not to host their website with Agency, or cancel its existing hosting service with Agency, Agency shall remove their Premium Plugin License Key(s) from the Premium Plugins prior to providing Customer with the website file(s). Customer agrees that it will become Customer’s sole and exclusive responsibility to setup an account with, and obtain their own Premium Plugin License Key(s) from the third-party developers of the Premium Plugins after they take over the hosting of their website. Customer understands that Premium Plugins without an active Premium Plugin License Key may stop receiving software updates and technical support (among other services) from the third-party developer, may stop working altogether (whether immediately or any time in the future), or may not be licensed to use on Customer’s website at all.
Website Ownership Terms – Licensed Fonts
Websites built by Agency for Customer may include fonts licensed by a third-party which have yearly (or ongoing) license costs (“Licensed Font”). Such fonts require the payment and renewal of fees to a third-party font developer in order to obtain a license to use the fonts (“Font License”). During the build of the website, and as long as Customer is actively hosting their website with Agency, and the Customer’s account is in good standing with Agency, Customer will be granted use of Agency’s Font License on Customer’s website. Agency reserves the right to charge a separate fee for the renewal of any Font License, and any such amounts shall be agreed to in advance by Customer and Agency. At no time will Customer be provided Agency’s Font License or access to Agency’s account at the third-party provider directly. Agency’s Font License shall remain the sole and exclusive property of Agency, and nothing in this agreement constitutes a transfer or assignment of right, title, interest, use or ownership of Agency’s Font License. Should Customer choose not to host their website with Agency, or cancel its existing hosting service with Agency, Agency shall remove their Font License from the website prior to providing Customer with the website file(s). Customer agrees that it will become Customer’s sole and exclusive responsibility to obtain their own Font License from the third-party developers of the Licensed Font(s) after they take over the hosting of their website. Customer understands that without an active Font License, the Licensed Font will not display or work on their website, and the website may revert to a default font, altering the appearance, layout, and/or performance of the website.
Website Ownership Terms – Flex License
Customers with an active & signed Flex License Agreement for their FLAUNTOMATIC website shall be subject to the terms & conditions outlined therein.
Logo & Brand Identity Ownership Terms
Customer shall own all right, title and interest in the completed logo and/or brand identity, including the design of the logo, color choices, font selections, and the unique combination of these aspects that comprise the final product.
Rejected Ideas & Designs
Agency reserves all rights, title & interest in any ideas & designs rejected by the Customer during the course of a project. Agency may use the rejected ideas & designs in any way it sees fit.
Identification of Developers on Websites
Customer agrees that the Agency’s name with a link to the Agency’s website, along with any other links and search terms as determined by Agency (“Agency Identification”), will be placed, and remain, on the bottom of Customer’s home page and any other page of the website that Agency deem necessary. The prices quoted by Agency for Customer’s website development and hosting have built-in discounts contingent on the inclusion of Agency Identification in the finished product. Customer may request to have the links removed at the time of sale by paying the additional development & hosting fees resulting from the removal of the discounts associated with inclusion of the Agency Identification.
Portfolio Display Rights
Customer grants Agency perpetual and irrevocable rights to use the customer’s first and last name, company name, company logo, creative content, description of services performed, samples of deliverables, testimonials and quotes (including unsolicited statements/quotes provided in person, by email or other communication mediums), and campaign results for the purpose of promoting and marketing of Agency’s services.
Confidentiality
Customer and Agency have disclosed or may disclose information & trade secrets relating to their business (including, but without limitation, client communications and customer lists, computer programs, technical drawings, graphics & media files, algorithms, scripts, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, customer and product development plans, forecasts, strategies, business practices and information), which to the extent previously, presently, or subsequently disclosed is hereinafter referred to as “Proprietary Information”. “Proprietary Information” also includes proprietary or confidential information of any third party who may disclose such information to either party in the course of the either parties’ business. The party who discloses Proprietary Information is hereinafter referred to as “Disclosing Party” and the party who receives this information is hereinafter referred to as “Receiving Party.”In consideration of the parties’ discussions and any access to Proprietary Information of either party, both parties make the following agreements:
To hold all Proprietary Information disclosed by either party in the strictest of confidence and to take the same degree of care to protect such information as it does with its own Proprietary Information.
Shall be granted the use of Proprietary Information only within the scope and purpose for which it was disclosed; to be used only for the benefit of the Disclosing Party; shall not exploit or permit to be used or exploited Proprietary Information for the benefit of another without the express written permission of the Disclosing Party.
Upon request the Receiving Party shall turn over all Proprietary Information owned by the Disclosing Party and immediately surrender any and all records, files, letters, memos, faxes, notebooks, drawings, sketches, reports, collateral, program listings, or other written , audio, magnetic, video, source or other tangible material containing any such Proprietary Information and any and all copies or extracts thereof.
Without a grant of any right or license, the parties agree that the foregoing shall not apply with respect to any Proprietary Information that either party can document as being:
Made available or becomes generally available to the public through no improper action or inaction by either party or any agent, consultant, affiliate, contractor or employee.
Disclosed to it by a third party who did not owe a duty of confidentiality.
In its possession or known by it without restriction prior to receipt from the other party.
Independently developed without use of any Proprietary Information by employees who have had no access to such information. Either party may make disclosures required by law or court order provided it uses diligent reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and has allowed the Disclosing Party to participate in the proceeding. Either party shall immediately give notice to the other of any unauthorized use or disclosure of the other’s Proprietary Information by the party or its employees or agents.
Regulatory Compliance
Customer agrees that it is their sole responsibility to ensure that any product(s) and service(s) provided by Agency are fully compliant with any regulatory standards and requirements for Customer’s industry (including, but not limited to, CASL, GDPR, Real Estate Industry Regulations), regardless if Customer has reviewed such deliverables or materials in advance. Customer understands and agrees that it is their responsibility to ask for a draft copy of any materials which may be directly or indirectly affected by regulatory standards prior to their use or publication (whether used or published by Customer or Agency), and failure to request a copy of such materials, or to review the materials if they are provided, will result in the Customer automatically (a) waiving any and all rights to review the materials, (b) accepting and certifying the materials as compliant, and (c) indemnifying Agency against any and all claims arising from the publication or use of the materials. It is Customer’s sole responsibility to familiarize themselves with and understand any such standards and to ensure that anything produced by Agency meets them, and any costs incurred in performing this research and ensuring compliance (for example, legal fees, consulting fees, etc.) shall be borne solely by Customer. Agency is not familiar with, or responsible to become familiar with, or enforce, any such standards, and will not be held responsible or liable for any non-compliance, errors or omissions in the product(s) and service(s) provided to Customer. Customer indemnifies and holds harmless Agency against any and all claims resulting from the publication, creation or use of non-compliant materials. Any costs, damages or injuries incurred as a result of non-compliance, including but not limited to, fixing, re-doing, re-printing, or re-publishing any work, advertising or materials which have been deemed to be non-compliant, as well as any fines, fees, penalties or other consequences (including, but not limited to verbal or written warning, suspension, or loss of license) resulting from the use of the non-compliant product(s) or service(s) is Customer’s sole responsibility. Should any product(s) or service(s) provided by Agency be deemed to be non-compliant, Customer agrees that any fees paid to Agency for the creation and/or delivery of those product(s) or service(s) shall not be refundable, and guarantees that any fees outstanding to Agency for the same shall be paid as originally agreed.
Limited Warranty and Limitation on Damages
Agency makes no representations or warranties, express or implied, including without limitation the fitness for a particular purpose, regarding the product(s) or any services provided by Agency. Agency does not warrant, guarantee or make any representations regarding the use or the results of the use of the product in terms of its correctness, accuracy, reliability, currentness, performance, appearance, ability to comply with any applicable industry regulations (including, but not limited to, CASL, GDPR, Real Estate Industry Regulations), or otherwise. The entire risk as to the results and performance of the product(s) and service(s) is assumed by Customer. Under no circumstance will the Agency be liable to the Customer for any claim for damages of any kind, direct or indirect, special, incidental, consequential, punitive or tort damages (including negligence), whether resulting from loss of use, delay of delivery, loss of data, loss of anticipated profits, loss of business, legal action brought against Customer by a third party, non-operation or increased expense of operation, breach of contract, tort (including negligence), fines resulting from regulatory infractions or non-compliance, or otherwise. Customer agrees to indemnify and hold Agency harmless from any and all claims brought by any third party relating to any aspect of the services or products provided by Agency, including, but without limitation, any and all demands, liabilities, losses, costs and claims, including attorney’s fees, arising out of injury caused by Agency or Customer’s products/services, material supplied by Agency or Customer, copyright infringement, data loss or theft, breach of security, penalties and fines (including, but not limited to, CASL or GDPR), loss of license, non-compliance with regulatory standards, damaged reputation, defamation, libel, loss of dealer status and/or preferential pricing and/or distribution rights, and defective products sold via the advertising or services. Further, Customer agrees to indemnify Agency from responsibility for problems / disruptions caused by third party services and contractors that Customer or Agency may use, such as media buyers, transportation, writers and writing services, photographers and photography services, videographers and videography services, merchant accounts, designers, programmers, business analysts, research consultancies and their product(s), shopping carts, shipping, website, email, DNS and domain hosting services, real-time credit card processing, marketers, search engine optimization (seo) specialists, and other services that relate to the execution of the services outlined in this Agreement by Agency. Should for any reason Agency be found liable to Customer for actual damages from any cause whatsoever, and regardless of the form of the action (whether in contract, tort including negligence, product liability or otherwise), the damages shall in no event exceed $100.00.
Independent Contractor
Agency agrees that they are retained as independent contractors and not as employees, associates, joint-venture partners or legal representatives of the Customer. It is the intention of the parties that the Agency will be fully responsible for payment of all withholding taxes, including, but not limited to; their own provincial and federal income taxes, Canada Pension Plan on all compensation earned and paid under this Agreement. The parties agree that the Customer will not withhold or pay any income tax, Workers’ Compensation Board Assessments, contributions or any other similar charges in respect of the Agency’ personnel, and any other payroll taxes on the Agency’ behalf. Agency understands and agrees that they will not be entitled to any employee benefits that the Customer provides for its employees generally or to any statutory employment benefits, including without limitation, company pension plans, profit sharing plans, worker’s compensation, or employment insurance. Agency agrees to indemnify Customer for any and all claims made by any lawful government authority for all statutory withholding taxes and deductions not paid by Agency and claimed against Customer for monies paid pursuant to this Agreement, and remitted thereto by Customer to such authority or claims against the Customer from Agency’s partners, associates and employees.
Personnel Hiring Policy and Hiring Fees
Customer acknowledges and agrees that Agency has invested substantial time, money and other resources in building its professional staff. This staff constitutes a substantial company resource and valuable asset of Agency. In recognition of this fact, in the event Customer hires an employee of Agency during the term of this Agreement or within one year after termination of this Agreement, Customer agrees to and shall pay to Agency a fee in an amount equal to 30% of such new hire’s first year salary, plus anticipated commissions and bonuses for the first year. This fee shall be payable immediately upon hire of the individual.
Equipment & Access
The Customer agrees to make available to the Agency, for the Agency’ use in performing the services required by this Agreement, such items of hardware and software, and access to facilities and data systems, as the Customer and the Agency may agree are reasonably necessary for such purpose.
Entire Agreement
This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements, written or oral, between the parties related to the subject matter hereof.
Governing Law
This agreement shall be governed by the Laws of the Province of Alberta and the laws of Canada applicable therein, without regard to choice of law principles. The parties further agree and understand that notwithstanding any regulations, rulings or conventions under any Conflict of Laws in any jurisdiction, that regardless of where the contract is executed and entered into, the parties have agreed that the laws of the Province of Alberta and Canada, as applicable, shall govern this contract. The parties hereby agree to attorn to the exclusive jurisdiction of the courts of the Province of Alberta for the commencement of any action hereunder, other than applications for injunctive relief.
Binding Effect
This Agreement shall be binding upon and inure to the benefit of Customer and Agency and their respective successors and assigns, provided that Agency may not assign any of its obligations under this Agreement without Customer’s prior written consent.
Amendment
Agency reserves the right to modify the Terms of Service at any time by providing Customer with a copy of the revised document (or a link pointing to this URL). This includes notifying them directly or indirectly in written or verbal form that the document has changed (including electronic communications such as email or fax), posting a notice on Agency’s website or social media accounts that the document has changed, or publishing an update to the document on Agency’s website.
Waiver
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
Good Faith Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.
No Responsibility for Theft or Damage Agency has no responsibility for any third party taking, accessing, hacking, defacing or destroying all or any part of the Deliverables provided to Customer by Agency.
Attorney’s Fees In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees. Both parties represent and warrant that, on the date first written above, they are authorized to enter into this Agreement in entirety and duly bind their respective principals by their signatures on the Account Setup Form.
