1.Definitions: In this Agreement, the following words or expressions have the following meanings:
1.1 "Agreement" means the terms and conditions herein and all instruments supplemental hereto or in amendment or confirmation hereof, and includes the Developer's Proposal;
1.2 "Client" means the signatory to the attached Developer's Proposal;
1.3 "Developer" means The Newland Group Limited;
1.4 "Developer's Proposal" means any written proposal to design, develop, and maintain a web site provided by the Developer to the Client;
1.5 "Effective Date" means the date the Developer's Proposal is signed by the Client;
1.6 "Services" means, collectively, the web site design, development, programming and other consulting services provided by the Developer to create the Work Product, as well as any maintenance and hosting services provided by the Developer, or any other services provided to the Client by the Developer; and
1.7 "Work Product" means all HTML and/or Java files, graphic files, animation files, data files, technology, scripting and programming (in object code form), all documentation, and each and every deliverable developed by the Developer in the course of its performance under this Agreement, and any other items necessary for the operation of the Client's web site developed by the Developer, and specifically does not include third party operating system software, or third party networking software, web browsers, hardware, programming, and content material ("Third Party Products").
2. Agreement: These terms and conditions govern the provision of Services by the Developer. The Client shall be deemed to have full knowledge of the terms and conditions herein and such terms and conditions shall be binding upon the Client upon acceptance of the Developer's Proposal by the Client.
3. Client Obligations
3.1 Cooperation: The Client shall cooperate with and assist the Developer by providing to the Developer such information and such access to the Client's personnel, facilities, equipment, databases, software and other resources, as the Developer may reasonably request. All such information and access will be considered the "Client Materials", the timely, complete, and accurate performance of which is a condition precedent to the Developer meeting its delivery dates described in the Developer’s Proposal.
3.2 Waivers / Licences: If the Work Product is to include audio, video, or images of real people, the Client shall obtain waivers or releases from all persons who appear therein. If the Work Product is to include musical works, the Client shall obtain the appropriate licences or assignments from the proper person or persons, including, without limitation, one or more of the recording company, the writer, the composer, the performers, and the applicable copyright collective.
3.3 Change Orders: The Work Product shall be delivered to the Client in phases, as set out in the Developer's Proposal. Upon delivery of each phase of the Work Product, the Client shall review the delivered Work Product and notify the Developer in writing within one week of delivery of any changes it requires to the Work Product. Change requests that do not substantially affect the nature of the Work Product, their performance or functionality, and that do not cumulatively extend the due date of any phase of the Work Product by more than five days or cumulatively increase the dollar amount of the Agreement by more than five per cent (5%) may be requested by the Client and accepted by the Developer. The Developer may, at its sole discretion, accept any change requests that reduce the cost of performance, provided that an adjustment in compensation is made for the out-of-pocket costs of any performance or preparation already undertaken. The Developer further may, at its sole discretion, accept any change requests that increase the cost or magnitude of performance, provided that the changes are reasonable in scope and a commensurate increase in compensation is fixed. The Developer has the right to reject any change request and terminate this Agreement as per the terms of Section Five.
3.4 Final Acceptance: Following delivery of the last phase of the Work Product, the Client shall test the Work Product to determine whether it contains the functionality and other objective requirements described in the Developer's Proposal (the "Acceptance Criteria"). This acceptance test shall run for thirty (30) days after final delivery of the Work Product (the "Testing Period"). During the Testing Period, the Client shall either: (a) notify the Developer in writing of its acceptance of the Work Product; or (b) provide the Developer with written notice of any defects which cause the Acceptance Criteria not to be met. The Developer shall use best efforts to cure any defects described in such written notification and the Client will have an additional thirty (30) days to retest the Work Product to determine whether the Developer has cured the defects listed in the Client's notice. If such defects are not cured within ninety (90) days of receipt by the Developer of the initial notice of defects, then either party may terminate this Agreement subject to the provisions of Section Five hereof. For clarity's sake, the payment terms set out in subsection 5.3 shall apply to termination of this Agreement under this section. The Work Product will be deemed to have been accepted if no written notice of either acceptance or of defects is provided to the Developer within thirty (30) days after delivery of the Work Product.
4.1 Fees: The fees for the Developer's Services are as described in the Developer's Proposal.
4.2 Expenses: In addition to the fees described in the Developer's Proposal, the Client shall also reimburse the Developer for all reasonable travel and living expenses incurred by the Developer and the Developer's personnel in the course of performing the Services hereunder.
4.3 Out of Scope Services and Lost Time: If the Developer's Proposal indicates a fixed contract price, then such contract price is subject to additional fees due to: (a) the performance of services beyond those described in the Developer's Proposal; or (b) delays or additional costs incurred by the Developer as a result of the Client's failure to perform the Client's obligations described in Section Three of this Agreement (collectively, the "Out of Scope Services"). All Out of Scope Services shall be chargeable to the Client on a time and materials basis at the Developer's rate for such services in effect from time to time.
4.4 Payment terms: The Developer will invoice the Client in accordance with the payment schedule specified in the Developer's Proposal. The Developer shall separately invoice the Client monthly for any Out of Scope Services. Unless otherwise provided for, all invoices shall be due and payable upon receipt and shall thereafter accrue interest, until paid, at the rate of one per cent per month above the prime lending rate of the Royal Bank of Canada to its most creditworthy customer. All NSF cheques are subject to a $75 administration fee. In addition to the rights provided under Section Five hereof, in the event any amounts due hereunder remain unpaid forty (40) days after the invoice date, the Developer shall have the right to: (a) withhold delivery of the Work Product, and/or (b) suspend the operation of the Client's web site until such time as all outstanding amounts have been paid. In the event the Developer exercises its rights under this section, the Client shall remain liable for all fees or expenses incurred in relation to any Hosting Services (as defined below) continued to be provided by the Developer.
5. Term and Termination
5.1 Term: The term of this Agreement shall commence on the Effective Date and shall continue until all obligations under this Agreement have been properly completed unless terminated earlier as provided herein.
5.2 Termination: This Agreement may be terminated by either party without cause on thirty (30) days prior written notice to the other party, provided all amounts due hereunder are paid by the Client to the Developer prior to the termination date. Either party may also terminate this Agreement upon written notice to the other party for such other party's failure to comply with any term or condition of this Agreement, where such failure is not cured within ten (10) days after receipt of notice. Upon termination of this Agreement for non-payment of any invoice, the Developer shall not be obligated to deliver any work in progress for which payment is not received. A transfer of the domain name by the Client from the Developer's web server to another Internet service provider shall not constitute termination of this Agreement.
5.3 Payment: In the event of any termination of this Agreement, the Client is responsible for all obligations arising from Services delivered prior to the termination date, including: (a) payment of all fees and expenses incurred on a time and materials basis up to the termination date; and (b) payment of the pro rata portion of the contract price, with percentage of completion to be determined by dividing the actual number of days worked by the number of days estimated to create the Work Product (on the basis of the most recent estimate provided by the Developer to the Client).
5.4 Return of Materials: Subject to the provisions of Sections Six and Seven hereof, upon any termination of this Agreement, each party will return to the other all materials embodying or disclosing the Confidential Information (as defined below) of such other party. The Client will promptly return to the Developer all Developer Materials (as defined below) and the Work Product delivered to or in possession of the Client for which payment has not been received and the Client's rights to use such Developer Materials and Work Product will terminate.
5.5 Effect of Termination: Sections Four through Eleven shall survive any termination or expiration of this Agreement.
6. Confidential Information: From time to time the parties may provide their own confidential business and technical information to each other in connection with the Services to be performed by the Developer hereunder ("Confidential Information"). Such information together with the Developer Materials and the preparation and specifications of the Work Product shall in all instances be treated as confidential, unless and until disclosed publicly by either party. Each party shall use its best efforts to prohibit any use or disclosure of the other party's Confidential Information, except as necessary to perform work hereunder. The Developer shall treat this project as confidential in accordance with the foregoing. However, after the Client has finally approved the Work Product, the Developer may list the Client as a client of the Developer and may include a link to the Client's web site on the Developer's web site.
7.1 Developer Materials. In connection with the provision of Services hereunder, the Developer may provide the Client with certain materials and information proprietary to the Developer and provided or used by the Developer, including, but not limited to, algorithms, methods, forms, graphics, music, photos, film clips, software in code or object form developed outside the scope of this Agreement, and other content provided by the Developer (collectively, the "Developer Materials"). The Client acknowledges that all right, title and interest in and to all Developer Materials is and remains the exclusive property of the Developer or its suppliers. Notwithstanding the foregoing and subject to the Client's payment of all fees, the Developer hereby grants to the Client a perpetual, world-wide, royalty-free, non-exclusive, non-transferable licence to use and reproduce the Developer Materials, solely for the internal business purposes of the Client. Such purposes shall not include the sublicensing of the Developer Materials separately or independently of the Work Product. Except as expressly authorized in this Agreement, the Client will not copy, modify, distribute or transfer (by any means), display, sublicense, rent, reverse engineer, decompile or disassemble the Developer Materials. Notwithstanding any rights that the Developer may grant to utilize the Work Product, the Client agrees that the Developer retains the right to re-use, distribute and license to any of its current and future clients any of its Developer Materials at any time and without any limitation, whether or not used by the Developer in the performance of the Services. Notwithstanding the foregoing, the parties are free to negotiate the transfer of the Developer's right, title, and interest in any of the Developer Materials to the Client. The terms and conditions attaching to any such transfer may be set out in the Developer's Proposal, but in all cases must be in writing and shall form part of this Agreement. For greater certainty, any content developed or provided by the Developer within the scope of this Agreement specifically for the Client shall form part of the Work Product and will be owned exclusively by the Client as per section 7.3.
7.2 Client Materials: The parties acknowledge and agree that all right, title and interest in and to all Client Materials will be owned exclusively by the Client. Notwithstanding the foregoing, the Client hereby grants to the Developer a perpetual, worldwide, royalty-free, non-exclusive licence to use, modify, reproduce and create derivative works of the Client Materials solely for the use in connection with the Services being provided hereunder.
7.3 Ownership of Work Product: Except as provided in subsections 7.1 and 7.2, the Client will own exclusively all right, title, and interest in and to the Work Product, which shall be considered a work created by the Developer for the Client. The Developer hereby assigns and transfers to the Client the Work Product and will execute such further documents provided by the Client to vest in the Client such ownership rights to the Work Product. The foregoing provisions will apply to all work in progress at the time of termination of this Agreement, subject to the payment of fees.
7.4 Third Party Materials: Nothing herein shall cause or imply any sale, licence, or other transfer of proprietary rights of or in any Third Party Products from one party to this Agreement to the other party.
8. Indemnification: If either party (the "Indemnitee") promptly notifies the other (the "Indemnitor") in writing of a claim against the Indemnitee that any of the Developer Materials or Client Materials or Work Product infringes a presently existing proprietary right of a third party enforceable in Canada or in the United States, and if the Indemnitee specifies in such notice that the claim is based to any extent upon an alleged infringement enforceable in Canada or in the United States by any portion of the Indemnitor's Materials (the Developer Materials or the Client Materials, as the case maybe), the Indemnitor, with respect to and to the extent of the portion of the claim pertaining to the Indemnitor's Materials, shall indemnify and defend such claim at its expense and pay any costs or damages (including reasonable solicitors' fees) that may be incurred or finally awarded against the Indemnitee. Subject to subsection 11.4 hereof, THIS SECTION SETS FORTH THE COMPLETE LIABILITY OF THE PARTIES WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. To the extent of the portion of the claim pertaining to its own materials, the Indemnitor under any of the indemnities set forth herein shall have sole control of the defence of any such claim and all negotiations for settlement. The Indemnitor shall not be obligated to indemnify the Indemnitee under any settlement made without the Indemnitor's consent or in the event the Indemnitee fails to cooperate fully (at the Indemnitor's expense) in the defence of any such claim.
9.l Developer warranties: The Developer represents and warrants that: (a) it will use best efforts to ensure that the Work Product will substantially conform to the Acceptance Criteria and be of good workmanship and free from defects for a period of thirty (30) days after the completion of the Testing Period (provided the Client makes no changes to the Work Product, the server, the hardware, or any technology related to any of them); (b) it has all rights necessary for the production, distribution, exhibition and exploitation of the Developer Materials as part of the Work Product consistent with the licence granted in this Agreement; (c) there is no outstanding contract, commitment or agreement to which the Developer is a party, or legal impediment of any kind known to the Developer which conflicts with this Agreement or might limit, restrict or impair the rights granted to hereunder; and (d) the Work Product will be fit for the particular purpose declared by the Client as set out in the Developer's Proposal.
9.2 Client warranties: The Client represents and warrants that: (a) the Client has all rights necessary for the production, distribution, exhibition and exploitation of the Client Materials as part of the Work Product consistent with the licence granted in this Agreement; and (b) there is no outstanding contract, commitment or agreement to which the Client is a party, or legal impediment of any kind known to the Client which conflicts with this Agreement or might limit, restrict or impair the rights granted hereunder.
9.3 Disclaimer: THE FOREGOING WARRANTIES BY EACH PARTY ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER PARTY SHALL HAVE ANY LIABILITY WHATSOEVER FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Limitation of Liability: THE DEVELOPER'S LIABILITY TO THE CLIENT FOR ANY REASON AND UPON ANY CAUSE OF ACTION, WHETHER SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY, SHALL AT ALL TIMES AND IN THE AGGREGATE BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE CLIENT TO THE DEVELOPER DURING THE THREE FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT UPON WHICH LIABILITY IS PREDICATED FOR SERVICES PROVIDED BY THE DEVELOPER HEREUNDER, EXCLUSIVE OF ANY EXPENSES REIMBURSED PURSUANT TO THIS AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED OR IMPLIED HEREIN, THE DEVELOPER SHALL HAVE NO LIABILITY FOR ANY DAMAGES WHATSOEVER RELATING TO ANY THIRD PARTY PRODUCTS OR ANY GOODS OR SERVICES NOT DEVELOPED OR PROVIDED BY THE DEVELOPER.
11. Server Hosting
11.1 Services: The Developer agrees, at the Client's option and upon payment of the fees set out in the Developer's Proposal, to maintain the Client's web site on the Developer's web server on a month to month basis, to make maintenance modifications to the Client's web site from time to time in accordance with the Client's directions, and to provide any other maintenance or hosting services as set out in the Developer's Proposal (the "Hosting Services"). As part of the Hosting Services provided hereunder, the Developer will provide a single and unique Universal Resource Locator (URL) address for use by the Client. At the Client's request, the Developer will assign a unique domain name to its server provided that the name is legally registered to and under the control of the Client. Upon request of the Client, the Developer may pay any and all domain registration fees on behalf of the Client, which fees shall be invoiced to the Client upon registration along with the Developer's processing fee in effect from time to time.
11.2 Content: The Client assumes full responsibility for all content posted to the Developer's server on the Client's behalf. The transmission, creation, or display of any materials in violation of federal, provincial, or local laws and regulations is strictly prohibited and is grounds for the immediate termination of this Agreement.
11.3 Limitations/Disclaimers of Liability: The following are in addition to any other limitations or disclaimers of liability provided for in this Agreement: (a) The Developer makes no guarantees on the security of its network provider or the data stored within the network; (b) The Developer does not represent or warrant to the Client that the Client will receive continual and uninterrupted Hosting Services during the term of this Agreement; and (c) In no event shall the Developer be liable for any loss of data or other damages suffered by the Client or the Client's users, including, but not limited to, loss of data resulting from delays, non-deliveries, mis-deliveries, service interruptions or damage to equipment caused by the Developer's own negligence or the negligence of its agents, servants, employees, third parties, or Client errors over which the Developer has no control.
11.4 Indemnity: Notwithstanding Section Eight hereof, the Client agrees to defend, indemnify and hold harmless the Developer, its officers, shareholders, agents, employees, other clients, and service providers from and against any and all liability, claim, damage, loss, or expense arising out of the Hosting Services provided by the Developer to the Client under this Agreement, including, without limitation, claims made by third parties (including clients of the Client) related to any false advertising claims, liability claims for products or services sold by the Client, claims for patent, copyright, or trademark infringement, claims due to disruption or malfunction of Hosting Services provided hereunder, or for any content submitted by the Client for publication by the Developer.
12. Non-Solicitation: The Client agrees that except as may otherwise hereafter be agreed in writing, the Client will not directly or indirectly, individually, or together with, or through any other person, firm, corporation, or entity: (a) during and for one year after the term of this Agreement, in any manner, approach, counsel, or attempt to induce any person who is then in the employ of or an independent contractor engaged to the Developer, to leave the Developer's employ or engagement, or employ, engage or attempt to employ or engage any such person. The Client agrees that for each individual it hires in violation of this section, the Client will pay the Developer damages equal to one hundred per cent (100%) of that individual's annual starting salary at the new position.
13.1. Force majeure: If either party is affected by any circumstances beyond the reasonable control of that party (including, without limitation, any strike, lock-out or other form of industrial action, but not including the inability of a party to obtain financing or other financial support) ("Force Majeure") it shall forthwith notify the other party of the nature and extent thereof. Neither party shall be deemed to be in breach of this Agreement, or otherwise be liable to the other, by reason of any delay in performance, or non-performance, of any of its obligations hereunder to the extent that such delay or non-performance is due to any Force Majeure of which it has notified the other party; and the time for performance of that obligation shall be extended accordingly. If the Force Majeure in question prevails for a continuous period in excess of ten (10) days, the parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable. If no agreement is reached between the parties, either party is free to terminate the Agreement as per the terms of Section Five hereof.
13.2. Currency: Unless otherwise provided for, all payments made pursuant to this Agreement shall be in Canadian dollar funds.
13.3. Governing Law: The validity and interpretation of this Agreement shall be governed by the laws and the jurisdiction of the courts of the Province of Ontario.
13.4. Severability: If any provision of this Agreement is invalid, illegal or incapable of being enforced by reason of any rule of law or public policy, such provision shall be severed and all other provisions of this Agreement shall, nevertheless, remain in full force and effect. No provision of this Agreement shall be deemed dependant upon any other provision of this Agreement unless so expressed herein.
13.5. Independent Contractors: The parties hereto are independent contractors. Nothing in this Agreement will be deemed to create any form of partnership, principal-agent relationship, employer-employee relationship, or joint venture between the parties hereto.
13.6. Waiver: Neither party will be deemed to have waived any provision hereof unless such waiver is in writing and executed by a duly authorized officer of the waiving party. No waiver by either party of any provision hereof will constitute a waiver of such provision on any other occasion.
13.7. Entire Agreement: This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. No change, alteration, modification, or addition to this Agreement shall be effective unless in writing and properly executed by the parties hereto. Subject to any restrictions on assignment herein, this Agreement shall ensure to the benefit of and be binding upon the parties and their respective heirs, successors, permitted assigns and legal representatives.
13.8. Notices: Any notice required to be given hereunder shall be deemed to be effective, if in writing and delivered personally or sent by prepaid registered mail or courier service, or by facsimile or other means of electronic communication (confirmed on the same or following day by prepaid mail), as hereinafter provided. Notice shall be sent to address, facsimile or email address of the Client or Developer set out in the Developer’s Proposal.
Any notice so given shall be deemed conclusively to have been given and received when so personally delivered or sent by facsimile or other electronic communication or on the second day following the sending thereof by private courier or mail. Any party hereto or others mentioned above may change any particulars of its address for notice by notice to the others in the manner aforesaid.
13.9. Headings and subsections: Section headings are provided for convenience of reference and do not constitute part of this Agreement. Any references to a particular section of this Agreement shall be deemed to include reference to any and all subsections thereof.
13.10. Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
13.11. Assignment: Neither party may assign or subcontract its rights or obligations (except to subsidiaries or affiliates) without the prior written consent of the other, which consent will not be unreasonably withheld.