THIS AGREEMENT is made Between "Montreal Web Design Inc."
(hereinafter referred to as the "Developers")
"YOU, THE CUSTOMER"
(hereinafter referred to as the "Customer").
WHEREAS, the "Developers" have experience and expertise in the development of web sites; and
AND WHEREAS, the "Customer" agrees to have the Developers develop a web site for it; and
AND WHEREAS, the "Developers" agrees to develop the Customer's web site on the terms and conditions set forth herein (the "Web Site").
NOW THEREFORE, in consideration of the mutual promises and covenants hereinafter set out the parties agree as follows:
As used herein, the following terms shall have the following meanings;
(1) "Customer" shall mean ["YOU, CUSTOMER"]
(2) "Developers" shall mean ["Montreal Web Design Inc."]
(3) "Web Site" shall mean the web site according to the terms and specifications as set out in the schedules to this contract as agreed and amended by the parties hereto.
(4) "Specifications" shall mean for the purpose of each separate contract the specifications as set out and agreed to by the parties, and any amendments thereto, as attached hereto as Schedule "B".
(e) "Dollars" All amounts referenced herein shall mean currency of Canada.
1.2 "Schedules" - The following are the Schedules attached hereto and are incorporated by reference into this agreement:
Schedule "A" - Terms and other conditions for the development of the "Web Site".
Schedule "B" - Specifications that are applicable to customer's web site.
1.3 Invalidity of Provisions - Save and except for any provisions or covenants contained herein which are fundamental to the subject matter of this Agreement (including without limitation, those that relate to the payment of monies), the invalidity or unenforceability of any provision or covenant hereof or herein contained shall not affect the validity or enforce ability of any other provision or covenant hereof or herein contained and any invalid provision or covenant will be deemed to be severable.
1.4 Headings - The insertion of headings is included solely for convenience and reference and is not intended to affect the construction or interpretation of this Agreement nor are the headings intended to be full or accurate descriptions of the contents hereof.
Unless terminated earlier in accordance with the termination and default provisions in the Agreement, the term of this Agreement shall be for the duration of the works to be completed as referenced herein and the Web Site is delivered to the Customer for its use.
3. Compensation - Contract Price
3.1 Upon the execution of this Agreement the Customer agrees that it shall pay to the Developer the agreed upon sum in cash, bank draft, certified funds, or credit card payment, as applicable, which is agreed and understood to be non- refundable in the event of termination or cancellation, the consideration being the Developers' initial development, proposal and other preparatory works which is agreed to by the parties as necessary to this agreement, of which said amount upon completion of the web site, shall represents a partial payment towards the total contract amount.
3.2 Upon the Developers developing and/or delivering to the Customer, those items for the Web Site as set out in the specifications and Schedule(s) "A" and "B" to this agreement, the Customer shall pay to the Developers, progress payments in amounts representing a percentage of the total contract price, as specified in Schedule "A", and thereafter in the same percentage at each milestone as set out in the Schedule "A" to this Agreement.
3.3 In the event that the Customer fails to make any of the scheduled payments referenced herein and more specifically as set out in Schedule "A" hereto, by the deadline set forth in Schedule "A", the Developers reserve the sole and exclusive right, but are not obligated, to retain all monies paid to date without refund, notwithstanding the web site has not been completed and to pursue any and all legal and other remedies at its disposal, including, but not limited to the following:
(1) to terminate the Agreement and retain all monies paid to date,
(2) to pull, disable, disassemble, block, or otherwise make unusable the Web Site and associated links, without notice to the Customer and to retain full and complete ownership thereof,
(3) to transfer the Web Site contents to another Customer for valuable consideration, and
(4) to commence legal action for damages and/or injunctive relief, and all legal costs, on a solicitor and client basis.
4. Terms and Conditions
4.1. Development of Web Site
The Developers agree to develop the Web Site according to the terms listed in Schedule "A", attached hereto.
The Developers agree to develop the Web Site pursuant to the specifications set forth in Schedule "B" attached hereto (the "Specifications").
4.3. Delivery of Web Site
The Developers will use its best efforts and reasonable diligence in the development of the Web Site and endeavor to deliver to the Customer an operational Web Site by the date agreed upon. Notwithstanding the aforesaid delivery date, the Customer acknowledges and agrees, that this delivery deadline, and the corresponding progress payments thereto as listed in Schedule "A", are best effort estimates, and are not time of the essence required delivery dates. Where commercially reasonable, the Customer and the Developer will revise delivery schedules, acknowledged by the parties in writing.
4.4. Proprietary Ownership Rights
(1) The Customer agrees that the Web Site is and remains the exclusive property of the Developers and that the Developers shall retain title to and hold all rights, and interest in and to all software developed by the Developers and the Web Site and copies thereof, as may be applicable, notwithstanding the granting of any license in respect of the use thereof. The Customer acknowledges that it receives no title or ownership rights in or to any of the intellectual property rights in the software. Specifically, but without limitation, the Customer agrees that the Developers shall hold all right, title, and interest in and to:
(a) all text, graphics, animation, audio components, and digital components of the Web Site (the "Content"),
(b) all interfaces, navigational devices, menus, menu structures or arrangements, icons, help and other operational instructions, software and all other components of any source or object computer code that comprises the Web Site,
(c) all literal and non-literal expressions of ideas that operate, cause, create, direct, manipulate, access, or otherwise affect the Content, and
(d) all copyrights, patents, trade secrets, and other intellectual or industrial property rights in the Web Site or any component or characteristic thereof. The Customer further agrees that it shall not do anything that may infringe upon or in any way undermine Developers' right, title, and interest in the Web Site, as described in this paragraph.
(2) Customer shall retain all of its intellectual property rights in any text, ../images or other components it owns and transmits to Developers for use in the Web Site. Customer shall hold the copyright for the agreed upon version of the website as delivered, and the Customer's copyright notice may be displayed in the final version.
Without limiting the above, the Customer and the Developers acknowledge and agree that the Specifications and all other documents and information related to the development of the Web Site (the "Confidential Information") will constitute valuable trade secrets of the Developers. The Customer shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without the Developers' prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information. Excluded from the "Confidential Information" definition is anything that can be seen by the public on the Web Site when each page of the Web Site is first accessed.
The performance by the Customer of the foregoing obligations is a condition to the Developer developing the Web Site for the Customer and the use thereof by the Customer.
5. Limited Warranty and Limitation on Damages
The Developers warrant the Web Site will conform to the Specifications as set out herein. If the Web Site does not conform to the Specifications, Developers shall be responsible to correct the Web Site without unreasonable delay, at the Developers sole expense and without charge to the Customer, to bring the Web Site into conformance with the Specifications. This warranty shall be the exclusive warranty available to the Customer, regardless of whether any remedy set forth herein fails of its essential purpose or otherwise, and in no event shall the Developers be liable for 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, non-operation or increased expense of operation, or otherwise. The Customer waives any other warranty, express or implied, including the implied warranties of merchantability and fitness for a particular purpose. The Customer acknowledges that the Developers do not represent or warrant that the Web Site will work on all platforms, or that the Web Site will be error free, or that the Developers will be able to achieve fixes or workarounds for every problem or error discovered. The Customer acknowledges that Developers are not responsible for the results obtained by the Customer on the Web Site. The Customer hereby waives any claim for damages of any kind, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to Developers as set forth in Schedule "A" attached hereto, and in no event shall the Developers total cumulative liability hereunder from all causes of action of any kind, exceed the total amount paid by the Customer to the Developers. The Customer further agrees to indemnify the Developers from and against any loss, claim, liability, damage, cost or expense, including legal fees, payable to any person or entity arising out of the use of the Web Site.
6. Independent Contractor
The Developers agree that they are retained as independent contractors and not as employees of the Customer. It is the intention of the parties that the Developers 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, social security tax, or any other payroll taxes on the Developers' behalf. The Developers understand and agree that they will not be entitled to any fringe benefits that 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. The Developers agree to indemnify the Customer for any and all claims made by any lawful government authority for all statutory withholding taxes and deductions not paid by the Developers and claimed against the Customer for monies paid pursuant to this Agreement, and remitted thereto by the Customer to such authority.
The Customer agrees to make available to the Developers, for the Developers' use in performing the services required by this Agreement, such items of hardware and software as the Customer and Developers may agree are reasonably necessary for such purpose.
8. General Provisions
8.1 Entire Agreement.
This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supercedes all prior agreements, understandings, negotiations and discussions, whether oral or written of the parties, and there are no warranties, representations or other agreements between the parties in connection with the subject matter except as specifically set out herein. No supplement, modification, amendment, waiver or termination of this agreement will be valid or binding unless executed in writing by the parties.
8.2 Proper Law of Contract
This agreement shall be governed by the Laws of the Province of «State» 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 "«State»" and Canada, as applicable, shall govern this contract.
8.3 Binding Effect.
This Agreement shall be binding upon customer consent, i.e. checking box marked "I Agree".
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.
8.5 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.
8.6 Ownership of Photographs.
The Developers' may use some of their own photographs for the Web Site. Developers' maintain ownership of the photographs, and only grant the Customer a non-exclusive right to use those photographs, and only on the Customer's web site.
8.7 No Right to Assign.
The Customer has no right to assign, sell, modify or otherwise alter the Web Site, except upon the express written advance approval of the Developers, which consent can be withheld for any reason.
8.8 Right to Remove Web Site.
In the event the Customer fails to make any of the payments set forth on Schedule "A" within the time prescribed in Schedule "A", Developers have the right to remove the web site until payment in full is paid, plus accrued late charges of
2.5 % per month.
The Customer warrants that everything it gives the Developers to put on the Web Site is legally owned or licensed to Customer. The Customer agrees to indemnify and hold the Developers harmless from any and all claims brought by any third party relating to any aspect of the Web Site, including, but without limitation, any and all demands, liabilities, losses, costs and claims including attorney's fees arising out of injury caused by the Customer's products/services, material supplied by the Customer, copyright infringement, and defective products sold via the Web Site.
8.10 Use of Web Site for Promotional Purposes.
The Customer grants Developers the right to use the Web Site for promotional purposes and/or to cross-link it with other Web Sites developed by Developers.
8.11 No Responsibility for Theft.
The Developers shall have no responsibility for any third party accessing, using or taking all or any part of the Web Site.
8.12 Right to Make Derivative Works.
The Developers shall have the exclusive rights in making any derivative works of the Web Site.
8.13 Legal Fees. In the event any party to this Agreement employs a lawyer to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual legal fees and costs, including expert witness fees, on a solicitor and client basis.
8.14 Identification of Developers.
The Customer agrees that the Developers' logos will be placed on all pages of the Web Site discreetly. Customer also agrees to put on Developers' copyright notices on the Web Site and the relevant content therein when requested to do so.
8.15 No responsibility for loss.
In addition to the above, the Developers are not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of the Web Site.
8.16 Transfer of Rights.
In the event Developers are unable to continue maintenance of the web site, non-exclusive rights to the web site will be granted to Customer.
8.17 Domain Name.
Any domain name registered on Customer's behalf will be made in Customer's name for both the billing and administrative contacts. The technical contact is generally required to be the hosting ISP. The Developers will register domain names in Developers name. The developers does not own the domain names, as long as the Customer pays yearly. If Customer does not pay, the domain names will expire and Customer will no longer own ownership of the domain names.
- Schedule "A": Payment Terms
1. a) Minimum 50% deposit of total price to be paid prior to commencement of website development,
50% Fifteen (30) business days of initial contract signing
Final payment: Net 30 days - Website will go LIVE on final payment .
- 2. a) Customer's price is locked at that agreed upon total and will not change. All extra services requested by customer will be paid in full prior to their commencement.
Schedule "B": Other specifications that are applicable to customer's web site.
Client is responsible for providing content and photos within 30 days of signing.
1. a) Montreal Web Design Inc. - logo and/ or name with link will always appear discreetly on designed website.
I/We have read, understand and agree to be bound by Terms of Service.
Last revision: January 12, 2012.