(three digits on the back of card)
1. PROVISION OF SERVICE
1.1The Client hereby retains the Agency to provide Services upon the terms and conditions set forth in this Agreement.
1.2The Agency is and at all times during the term of this Agreement an independent entity providing professional services to the Client. The Agency is not obligated to provide their full time and attention to the Client.
1.3The Client acknowledges and agrees that it may be necessary for the Agency to replace the personnel servicing the Accounts with alternative personnel with similar levels of seniority and experience.
1.4The Agency shall perform and complete their Services:
a) in a good and workmanlike manner, in accordance with the requirements of this Agreement, with due diligence, efficiency and in a first-class manner that enhances the reputation of the Client;
b)in full compliance with the requirements of every governmental, quasi-governmental or regulatory authority having jurisdiction; and
c)in accordance with the requirements of the Client and their insurers
1.5The Client will notify the Agency in writing of any change to the Authorized Persons during the Term. The Agency shall not be responsible for any delay in the performance of the Services resulting from the unavailability of an Authorized Person to provide approval.
2.1The Client hereby undertakes to compensate the Agency for the provision of their services to the Client during the term of this Agreement.
2.2The Agency shall be compensated in accordance with initial and ongoing quoted estimates.
2.3The Agency’s payment terms are net 15. The Agency reserves the right to charge interest on all invoices presented to the Client which are not paid by the relevant due date at the annual rate of 5%. Such interest will accrue on a daily basis from the date on which payment became overdue up to the date on which the Agency receives the full outstanding amount together with all accrued interest.
2.4The Agency and Client agree that the terms of the compensation under this Agreement are confidential between the parties.
3. Amendments to Work in Progress
3.1The Client may request the Agency to cancel or amend any and all plans, schedules or work in progress. The Agency will take all reasonable steps to comply with any such request provided that the Agency is able to do so within its contractual obligations to suppliers
3.2In the event of any such cancellation or amendment the Client will reimburse the Agency for any charges or expenses incurred by the Agency to which the Agency is committed. The Client shall also pay the Agency’s remuneration covering the canceled or amended Services as well as any charges imposed on the Agency by third parties arising from the cancellation or amendment
4. Copyright and Intellectual Property Rights
4.1The Agency shall insure, to the fullest extent possible under law, that the Client has access to high-resolution print and preview files but all design files, title and interest in and to, including copyrights, trade secret, patent and other intellectual property rights, with respect to any copy, photographs, advertisements, or other work or thing created by the Agency shall be the sole property of the Agency.
4.2Upon termination, the Client agrees that any advertising, merchandising, package, plan or idea prepared by the Agency and submitted to the Client (whether submitted separately or in conjunction with or as a part of other material) which the Client has elected not to utilize, shall remain the property of the Agency unless the Client has paid the Agency for its services in preparing such item. The Client agrees to return to the Agency any copy, artwork, plates, or other physical embodiment of such creative work relating to any such idea or plan which may be in the Client's possession at termination or expiration of this Agreement.
5. Confidential Information
5.1The parties acknowledge a duty not during or after the Term to disclose without the other’s prior written permission any confidential information either concerning the other’s business, its business plans, customers or associated companies or resulting from studies or surveys commissioned and paid for by the Client.
5.2In particular during and after the Term, the Agency acknowledges its responsibility to treat in complete confidence all the marketing and sales information and statistics relating to the Client’s business with which the Client may supply the Agency in the course of any work for the Client.
6.1The parties agree that neither of them will either on their own account or in partnership or association with any person, firm, company or organization or otherwise and whether directly or indirectly during or for a period of 12 months from the end of the Term solicit or entice away or attempt to solicit or entice away (or authorize the taking of any such action by any other person) any executive or employee of the other party who has worked on the Project at any time during the last 12 months of the Term.
7. COOPERATION FOLLOWING EXECUTION
7.1Following the execution of this Agreement, each party shall deliver to the other such further information and documents and shall execute and deliver to the other such further instruments and agreements as the other party shall reasonably request to consummate or confirm the transactions provided for in this Agreement, to accomplish the purpose of this Agreement or to assure to the other party the benefits of this Agreement. This shall include but not be limited to Assignments of Intellectual Property in which the Agency has contributed to this Agreement to the Client.
8. LIMITATION OF LIABILITY
8.1The Agency and the Client both agree that any legal action brought by either party shall be brought within one (1) year of the occurrence of the damage, and no later. In the event damages such as compensation for any breach of this Agreement are awarded, a breach of any covenant contained in this Agreement (whether express or implied by either law or fact), or any other cause of action based in whole or in part on a breach of any provision of this Agreement or related in any way to the Agency’s engagement hereunder, such damages shall be limited to strictly compensatory contractual damages and may not include punitive damages and any other type of tort damages resulting from any such breach of any such term, covenant or condition of the Agreement or resulting from the relationship between the Agency and the Client.
8.2Website and email account hosting:
a)The Agency reserves the right to suspend or cancel a customer's access to any or all services the Agency provided when the Agency decides the account has been inappropriately used.
b)The Client agrees that the Agency will not be liable for (A) any suspensions or loss of services, except to the limited extent that a remedy is provided under this agreement; (B) Interruption of business; (C) Access delays or access interruptions to the website(s) provided through or by the services; (D) Loss or liability resulting from acts of God; (E) Data non-delivery, mis-delivery, corruption, destruction or other modification; (F) Events beyond the control of the Agency; (G) The processing of the Client’s application for services; or (H) Loss or liability resulting from the unauthorized use or misuse of the account identifier or password. The Client further agrees that Agency will be not be liable for any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, Tort (including negligence), or otherwise, regardless of whether or not the Agency has been advised of the possibility of such damages. In no event shall the maximum aggregate liability of the Agency exceed the total amount paid by the Client for the services of a one-month period, but in no event greater than one hundred dollars (100.00).
c)Indemnification – The Client agrees to release, indemnify, and hold the Agency, their contractors, agents, employees, officers, directors and affiliates harmless from all liabilities, claim and expenses, including attorney’s fees and court costs, for third party claims relating to the Clients use of the services or arising under this agreement, including without limitation, infringement by the Client or someone else using the Client’s computer, of any intellectual property or other proprietary right of any person or entity, or from the violation of any term or condition of this agreement.
8.3Social media management
a)The Client agrees that the Agency will not be liable for (A) any suspensions or loss of social media accounts or services, except to the limited extent that a remedy is provided under this agreement; (B) Interruption of business; (C) Access delays or access interruptions to social media accounts; (D) Loss or liability resulting from acts of God; (E) Events beyond the control of the Agency; (F) Loss or liability resulting from the unauthorized use or misuse of your account identifier or password. The Client further agrees that Agency will be not be liable for any indirect, special, incidental, or consequential damages of any kind (including lost profits or litigations) regardless of the form of action whether in contract, Tort (including negligence), or otherwise, regardless of whether or not the Agency has been advised of the possibility of such damages. In no event shall the maximum aggregate liability of the Agency exceed the total amount paid by the Client for the services of a one-month period, but in no event greater than one hundred dollars (100.00).
b)Indemnification – The Client agrees to release, indemnify, and hold the Agency, their contractors, agents, employees, officers, directors, and affiliates harmless from all liabilities, claim and expenses, including attorney’s fees and court costs, for third party claims relating to the Clients use of the services or arising under this agreement, including without limitation, an infringement by the Client or someone else using the Clients’ computer, of any intellectual property or other proprietary rights of any person or entity, or from the violation of any term or condition of this agreement.
9. GOVERNING LAW
This Agreement shall be governed by the laws of the Province of Alberta, Canada. Disputes shall be adjudicated at Calgary, Alberta.
If any provisions of this Agreement should be deemed to violate time or geographical limitations, or any other limitations, permitted by applicable law in any jurisdiction, such provisions shall be deemed reformed in such jurisdiction so as to continue to apply to the maximum permitted by applicable law and this Agreement shall continue in full force and effect with regard to all other provisions.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the Agency and the Client with respect to the subject matter hereof and supersedes all oral or written communications or other agreements between the parties with respect to such subject matter hereof.