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Solutions Agreement

DIT Web Solutions Inc.

NOTICE TO USER. This is a legal contract between the company whose information is included in the Order Form ("You" or “Client" used interchangeably) and DIT Web Solutions Inc. (“We”, “Us”, “Developer” or “DIT”) concerning the your project and other electronic storage and distribution facilities and other services for websites and other electronic media and content, collectively “Services”. By paying any fee towards DIT, You are consenting to be bound by all terms and conditions of this Service Agreement ("Agreement"). If You do not agree to all terms and conditions of this Agreement, You may not use any of our Services.

 

The company whose information is listed in the Order Form is the Client, whether it be You directly (if a sole proprietorship or partnership) or a corporation. In the event the Client is a corporation, You agree that You will be held personally responsible under these terms and conditions in the event that You are not authorized to bind that corporation. For all sections of this Agreement other than this paragraph, “You” shall refer to the Client whether or not the Client is a corporation, partnership or sole proprietorship.

 

This and all content, information, services and software ordered or provided on or through DIT may be used solely under the terms and conditions of this Agreement.

 

WHEREAS the Developer is in the business of providing brand development, internet website design and development services, website implementation products and services, hosting and domain name management services, and various additional products and services related thereto;

            AND WHEREAS the parties wish to set out the terms and conditions upon which the Developer will provide to the Customer various internet website design and development products and services;

NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the respective covenants and agreements of the parties contained herein, the sum of one dollar paid by each party to the other, and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

1.                 INTERPRETATION

1.1              Definitions.  In this Agreement, unless the context otherwise requires, the following terms have the following meanings:

“Agreement” means this agreement and any schedule, appendix, addendum or amendment which is signed by the parties and which references this agreement;

“Business Day” means any day, other than Saturday, Sunday or any statutory holiday in the Province of Ontario;

“Confidential Information” means any business, marketing, technical, scientific or other information disclosed by a party and relating to such party’s operations, products, designs, plans, strategy, customers, business opportunities, finances, research, development, know-how, trade secrets or employees, and, at the time of disclosure, is designated as confidential, is disclosed in circumstances of confidence, or would be understood by the receiving party, exercising reasonable business judgment, to be confidential;

“Content” means Customer Materials that are used, displayed or otherwise made available to internet users on the Website;

“Customer Intellectual Property” has the meaning attributed to such term in section 6.2;

“Customer Materials” means all information, production media, content, documentation, data, images, text, software, web pages, drawings, icons, photographs, pictures, charts, artwork, trademarks, tradenames, logos, sound, graphics, video, files and other material, however stored and/or encoded, that is supplied by the Customer to the Developer for the purposes of the Developer performing the Services;

“Design Intellectual Property” has the meaning attributed to such term in section 6.1;

“Developer Intellectual Property” has the meaning attributed to such term in section 6.3;

“Documentation” means user manuals, reference manuals, on-line help or other printed material or instructions provided by the Developer and relating to the setup, installation and maintenance of the Customer’s Website;

“FTP” means file transfer protocol;

“Mobile” means a series of interconnected mobile pages or screens intended to be accessible by internet users with a mobile device or any other device or software that can connect to the internet.

“Order Form” means a digital or printed estimate of work to the Client outlining the Services purchased by the Client, the cost of these Services, as well as all relevant information relating to the Client.

“Person” includes any individual, corporation, trust, trustee, legal representative, partnership, limited partnership, unincorporated association, government body or agency;

“Services” means the services to be provided to the Customer by the Developer as described hereunder and in the Order Form hereto, or as subsequently ordered by the Customer in accordance with the terms of this Agreement;

“Specifications” means the written description of particulars, specifications and performance criteria for the Customer’s Website that are set out on the Order Form;

“Term” has the meaning attributed to such term in section 10.1 of this Agreement; and

“Website” means a series of interconnected web pages or mobile pages or screens intended to be accessible by internet users with a web browser or any other device or software that can connect to the internet.

1.2              Headings and Table of Contents.  The inclusion in this Agreement of headings, subheadings and table of contents is for convenience of reference only and shall not affect the construction or interpretation of this Agreement.

1.3              Gender and Number.  In this Agreement, unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.

1.4              Currency.  In this Agreement, all amounts are stated and payable in Canadian currency, unless indicated otherwise.

1.5              Invalidity of Provisions.  Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof.

1.6              Entire Agreement.  This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement.  There are no warranties, representations or agreements between the parties in connection with such subject matter except as specifically set forth or referred to in this Agreement.

1.7              Modification and Waiver.  This Agreement may not be modified unless agreed to in writing by both the Customer and the Developer.  No extension of any time limit granted by a party shall constitute an extension of any other time limit or any subsequent instance involving the same time limit.  No consent by a party to, nor waiver of, a breach by the other, whether express or implied, shall constitute a consent to or waiver of or excuse for any other different or subsequent breach, unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.  Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused.

1.8              Counterparts.  This Agreement may be signed in counterparts and each of such counterparts shall constitute an original document and such counterparts, when taken together, shall constitute one and the same instrument.

2.                 SERVICES

2.1              Website.  The Developer will design and/or develop the Customer’s Website in accordance with the specifications set out in the Order Form (the “Specifications”).

2.2              Installation.  If the Specifications provide that the Developer will install the Customer’s Website on a server owned or operated by a third party, then the Developer will install the Customer’s Website on such server, as described in the Specifications. We reserve the right to not install the Customer Materials on the server or alternatively remove or request the removal of Customer Materials from any third party server if payment is not received in accordance with section 5, as further discussed in section 10.2 (e). If the Specifications provide that the Developer will host the Customer’s Website on the Developer’s server, then the Developer will install the Customer’s Website on the Developer’s server, as described in the Specifications.  If not specified in this Agreement or in the Specifications that the Developer will install the Customer’s Website on the Customer’s server or on a third party server, the Customer shall be exclusively responsible for properly installing the Customer’s Website on a suitable internet web server.  If the Specifications provide that the Developer will install the Customer’s Website on a server owned or operated by a third party or by the Customer, then it will be the Customer’s responsibility to ensure that such server is compatible with the Customer’s Website and is functioning properly. The Developer cannot be responsible for any lack of functionality of the Customer’s Website resulting from compatibility issues with the Customer’s server or any third party server, or any changes in software or hardware on any server other than the Developer’s server.

2.3              Testing by Developer.  The Developer will test the Customer’s Website to ensure substantial compliance with the Specifications.  If the Specifications provide that the Developer will install the Customer’s Website on a server owned or operated by a third party, then the Developer will test the Customer’s Website on such server.  If the Specifications provide that the Customer will host the Customer’s Website on the Customer’s server, then the Developer will test the Customer’s Website on the Customer’s server.  If the Specifications do not provide that the Developer will provide installation services, then the Developer will test the Customer’s Website on the Developer’s server prior to release to the Customer.

2.4              Testing by Customer.  The Customer is responsible for conducting all acceptance and other testing that is identified in the Specifications as being the Customer’s responsibility.

2.5              Training.  If the Order Form indicates that the Developer will provide training to the Customer and/or its personnel, then the Developer will provide training to the Customer and/or its personnel as described in the Order Form.

2.6              Maintenance and Support Services.  The Developer will provide to the Customer the Website maintenance and support services described in the Specifications.

2.7              Manner of Provision of Services.  All Services to be provided hereunder will be provided in a good and professional manner, in accordance with all applicable laws, rules and regulations, and in accordance with all generally accepted industry standards applicable to the provision of similar services.

2.8              Change Control.  If the Customer wishes at any time to request a change in the Services, or if the Customer requests the Developer to provide professional services outside the scope of the Services that are specified in the Specifications, the Customer will, unless otherwise specified in the Specifications, prepare a written change request.  The Developer will evaluate and respond to any change request promptly and will advise the Customer in writing of any impact on the cost of and delivery schedule for any Services as a result of the proposed change.  Upon written confirmation from the Customer, the Developer will proceed with the change, at the price and upon the terms of which the Customer was advised, and the Specifications shall be deemed to have been amended accordingly.  The Developer reserves the right to charge the Customer, at its standard time and materials rates, for any time spent evaluating and responding to a change request which the Customer elects not to implement.  The Developer will have no obligation to implement a change in the Services unless such change is first agreed upon in writing by the Customer and a duly authorized representative of the Developer.

2.9              Delays.  If the timetable for performance of any Services is delayed as a result of a delay by the Customer in the performance of its responsibilities as set out herein or in the Specifications, or as the result of any act of God, or as the result of any change in the Services to be provided, or as the result of any factor which is beyond the reasonable control of the Developer, then the timetable for the performance of any Services shall be extended for the period of time that the Services have been delayed as a result of such factor or events.

2.10          Updates. The Customer understands that there will be extra cost for DIT to update the project after the project is complete, and the project is available for everyone to see and use.

2.11          Participation. The Developer will require the Customer’s mutual participation to complete the Specifications it in a timely manner. If the Customer is not responding or plays no role in any participation in the Services, beyond 30 days, the Developer may reserve the right to cancel the project without refund. Any completed work will be owed at that time.

2.12          No Refunds. The Customer does not provide refunds for any work.

 

3.                 COMPLETION, INSTALLATION AND ACCEPTANCE

3.1              Completion DateThe Developer will use all commercially reasonable efforts to perform the Services on or before the completion date specified in the Specifications.  The Developer is not responsible for any delay in the completion of Services unless specifically provided for in the Specifications.  The Developer will advise the Customer promptly of any expected delay in the completion of Services.

3.2              Manner of Delivery.  If the Specifications provide that the Developer will install the Customer’s Website on a server owned or operated by a third party, then the Developer will deliver (or transmit electronically) the Customer’s Website to such third party, in HTML format and on appropriate media, as described in the Specifications.  If the Specifications provide that the Customer will host the Customer’s Website on the Customer’s server, then the Developer will deliver (or transmit electronically) the Customer’s Website to the Customer, in HTML format and on appropriate media, as described in the Specifications.

3.3              Customer Responsibilities.  The Customer will be responsible for the following, in addition to any specific responsibilities set out in the Specifications:

(a)          carry out reviews and respond to requests for approvals and information on a timely basis;

(b)          if applicable, ensure that sufficient Customer representatives are present as the Developer may require in connection with the delivery and installation of the Customer’s Website and/or the performance of the Services;

(c)          provide the Developer with timely and accurate information and documentation, as reasonably required by the Developer to perform the Services;

(d)          make available to the Developer personnel familiar with the Customer’s requirements and with the expertise necessary to permit the Developer to undertake and complete the Services;

(e)          provide a safe area for the Developer to perform any Services required to be performed at the Customer’s site; and

(f)           co-operate reasonably with the Developer and its authorized representatives.

3.4              Compliance with Laws.  The Customer agrees to adhere to all local, provincial, federal, municipal and international laws and regulations in connection with the design and development of its Website including, without limitation, laws relating to:

(a)   court ordered publication bans;

(b)   restrictions on publishing, printing, distributing, possessing, selling, advocating, promoting or exposing, obscene or threatening material, child pornography, or hate propaganda;

(c)   restrictions on the use of trade-marks or trade names, or any work which is protected by copyright, trade secret,  patent or other intellectual property laws;

(d)   restrictions on the distribution and dissemination of unsolicited commercial electronic messages (“SPAM”),

(e)   restrictions on defamation, libel, harm to reputation, invasion of privacy, misuse or failure to protect personal information, violation of secrecy, confidentiality, unfair competition and other situations which could generate liability; and

(f)    export and import restrictions.

3.5              Developer may Refuse to Perform Services.  The Developer may, in its discretion, refuse to perform any Services hereunder if the Developer is of the opinion, acting reasonably, that the Customer is in violation of any of the restrictions contained in section 3.4 of this Agreement.

3.6              Responsibility for Website Content.  The Customer agrees to be solely responsible for all Customer Materials and Content and all information, text, images, documents, pictures, audio, video, media, drawings, data, icons, photographs, charts, artwork, trademarks, tradenames, logos, graphics and other material provided by the Customer or posted on, received by or created through the Customer’s Website, even if transmitted, posted, received or created by someone other than the Customer, and agrees to indemnify the Developer for any damages suffered by the Developer as a result of any Customer Materials being in violation of section 3.4, 4.2 or 4.3, in accordance with the indemnity outlined in section 8.1 of this Agreement. 

4.                 REPRESENTATIONS AND WARRANTIES

4.1              Representations and Warranties of the Developer.  The Developer hereby represents and warrants to the Customer, acknowledges that the Customer is relying on such representations and warranties, and acknowledges that such representations and warranties will survive the termination or expiry of this Agreement:

(a)               the Developer has the right to enter into this Agreement and perform the Services; and

(b)               the Design Intellectual Property will be completely original and not derived from other copyrighted works and its use by the Customer in the manner intended does not and will not infringe the intellectual property rights of any third party, except for portions for which the Developer has obtained or will obtain permission from copyright and other owners and provide them to the Customer as set out in the Specifications or such elements as may be in the public domain.

4.2              Representations and Warranties of the Customer.  The Customer hereby represents and warrants to the Developer, acknowledges that the Developer is relying on such representations and warranties, and acknowledges that such representations and warranties will survive the termination or expiry of this Agreement:

(c)               the Customer has the right to enter into this Agreement and to perform its obligations hereunder; and

(d)               the Customer Materials and Content are the property of the Customer, or the Customer has the legal right to use the Customer Materials and Content, and their use by the Developer in the manner intended does not and will not infringe the intellectual property rights of any third party.

4.3              No Similar Design.  The Developer agrees that during the term of this Agreement, and for a period of two (2) years after its termination for any reason, the Developer will not, directly or indirectly, in any manner whatsoever, design any websites or webpages, or permit or cooperate with others to do so, that directly use the same elements as contained in the Customer’s Website in such a manner as would cause the look or operation of such other site to closely resemble the Customer’s Website. For clarity, the back end (non-public) content management interface included in the Customer’s Website is based on a proprietary template developed by the Developer, and is not a unique design element of the Customer’s Website.

5.                 CHARGES AND PAYMENT

5.1              Payment.  In consideration of the Developer performing the Services, the Customer will pay to the Developer the amounts described on the Order Form, in the manner and upon the timing described therein. If the Customer fails to make any payment when due, upon receipt, the Developer may suspend delivery of products, support services and any other services, and may terminate the Customer’s access to the Customer Website until the past due payment is made. The fees quoted are based on the general project specifications as outlined on the Order Form and are a best estimate with the information at hand. For all projects, there will be a budget review step at the end of planning, or at any point during the Services. Should the parameters of the project change, the quoted fees will be subject to change as well. In this case, the Developer will submit a quote on the additional work requested.

5.2              Interest.  Any amounts not paid when due hereunder shall accrue interest at the rate of 18% per annum or the maximum rate allowed by law, whichever is less.

5.3              Additional Products or ServicesThe Customer may, at any time during the term of this Agreement, place additional orders for Developer products or services pursuant to this Agreement at the Developer’s then current list price for such products or services.

5.4              TaxesAll charges and fees provided for in this Agreement are exclusive of and do not include any taxes, duties, or similar charges imposed by any government.  The Customer agrees to pay or reimburse the Developer for all GST, PST or any import or export charges or duties arising out of the Developer’s delivery of the Services contemplated by this Agreement.

5.5              ExpensesThe Customer will reimburse the Developer for all out-of-pocket expenses relating to the provision by the Developer of the Services, including without limitation all travel, lodging and meals incurred by the Developer’s personnel who are reasonably required to perform Services at a location other than their normal place of work.

5.6              Payment Terms. Unless specified on the Order Form, the payment terms will be 50% upon signing (received with this signed document returned), 30% progress payment, 20% upon completion of Services.

6.                 PROPRIETARY RIGHTS

6.1              Customer’s WebsiteThe following provisions apply in regard to the Website provided to the Customer by the Developer and all intellectual property relating to the design of the Customer Website (not including any software or design tools used by the Developer to create the Customer Website (collectively, the “Design Intellectual Property”):

(a)   except as specifically provided in this Agreement or in the Specifications, the Design Intellectual Property will become, upon delivery of the Services and full payment by the Customer of all fees and charges to be paid hereunder, the sole and exclusive property of the Customer;

(b)   the Developer agrees to assign and hereby does assign to the Customer (conditional upon full payment by the Customer of all fees and charges to be paid hereunder) all right, title and interest the Developer may have in and to the Design Intellectual Property;

(c)   the Developer agrees to execute such instruments and do such deeds, at the Customer’s expense, as may be reasonably necessary to vest in the Customer all intellectual property rights in and to the Design Intellectual Property;

(d)   the Developer acknowledges the Customer as the owner of all Design Intellectual Property and agrees not to take any action to jeopardize, limit or interfere in any manner with the Customer’s ownership of or rights in the Design Intellectual Property;

(e)   notwithstanding the foregoing, the Customer hereby grants to the Developer, and the Developer accepts, a non-exclusive, royalty-free, worldwide license to use the Design Intellectual Property as may be reasonably necessary or desirable in order for the Developer to provide the Services hereunder; and

(f)    the Developer acquires no rights whatsoever to any Design Intellectual Property except as specifically granted herein.

6.2              Customer Materials and Content.  The following provisions apply in regard to all Customer Materials and Content and all intellectual property rights of every nature and kind whatever in and to any Customer Materials and Content (collectively, the “Customer Intellectual Property”):

(a)   the Developer acknowledges that all Customer Intellectual Property is the sole and exclusive property of the Customer and, except as specifically provided herein, nothing contained herein shall constitute an assignment or transfer of any such Customer Intellectual Property, or any intellectual property rights therein, to the Developer;

(b)   the Developer agrees to execute such instruments and do such deeds, at the Customer’s expense, as may be reasonably necessary to vest in the Customer all intellectual property rights in and to the Customer Intellectual Property;

(c)   the Developer acknowledges the Customer as the owner of all Customer Intellectual Property and agrees not to take any action to jeopardize, limit or interfere in any manner with the Customer’s ownership of or rights in the Customer Intellectual Property;

(d)   notwithstanding the foregoing, the Customer hereby grants to the Developer, and the Developer accepts, a non-exclusive, royalty-free, worldwide license to use the Customer Materials and Content as may be reasonably necessary or desirable in order for the Developer to provide the Services hereunder; and

(e)   the Developer acquires no rights whatsoever to any Customer Intellectual Property except as specifically granted herein.

6.3              Developer Intellectual Property.  If the Specifications provide that any application, tool, technique, design or other intellectual property is to be owned by the Developer, then the following provisions apply with respect to such application, tool, technique, design or other such intellectual property (“Developer Intellectual Property”):

(a)   the Developer Intellectual Property is licensed to the Customer, not sold;

(b)   the Developer hereby grants to the Customer and the Customer accepts a non-exclusive, royalty-free, perpetual, worldwide license to use the Developer Intellectual Property as reasonably necessary or desirable in connection with the design, development, use and maintenance of the Customer’s Website;

(c)   title, ownership rights, and all intellectual property rights in all Developer Intellectual Property (including without limitation the related source code, object code and documentation) shall remain solely and exclusively in the Developer and/or its suppliers;

(d)   the Customer acknowledges the Developer as the owner of all Developer Intellectual Property, and all intellectual property rights relating thereto, and agrees not to take any action to jeopardize, limit or interfere in any manner with the Developer or its suppliers’ ownership of or rights in the Developer Intellectual Property; and

(e)   the Customer acquires no rights whatsoever to any Developer Intellectual Property except as specifically granted herein.

6.3.1    For clarity, all intellectual property provided by Developer that is embedded in the Customer’s Website, including coding, design and content, belongs to the Customer as Design Intellectual Property, except for the following:

(a)        Any specific intellectual property outlined in the Specifications as “Developer Intellectual Property”; and

(b)        Any software, tools or other services or products owned by third parties and licensed to Developer or the Customer for use in development or operation of the Customer’s Website, provided Customer is given advance notice of the use of such software, tools or other services. 

 

6.4              Limitations on Grant of License.  The license granted pursuant to section 6.1, 6.2 or 6.3 of this Agreement does not permit the licensee to, and such party agrees that it will not:

(a)               use the licensed intellectual property for any use or purpose other than, in the case of the Customer, its internal business purposes, and, in the case of the Developer, the performance of the Services hereunder;

(b)               provide, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use such licensed intellectual property for their own benefit or for the benefit of third parties;

(c)               copy, reproduce or duplicate such licensed intellectual property, by any means or in any manner, except as specifically provided herein or for reasonable backup purposes consistent with the grant of license described above; or

(d)               use such licensed intellectual property in any manner not contemplated by or consistent with the grant of license described above.

7.                 LIMITED WARRANTY

7.1              Limited Warranty.  The Developer warrants to the Customer as follows:

(a)               for a period of 60 days from the date on which the Developer provides access to the Customer’s Website to the Customer and the Developer confirms that the Customer’s Website is operational, the Customer’s Website will perform in substantial accordance with the Specifications, in accordance with the warranty  attached as Schedule E;

(b)               the storage media containing the Customer’s Website, if any, will be free from defects in materials and workmanship; and

(c)               all Services to be performed hereunder will be performed in a good and professional manner in accordance with all applicable laws and regulations and all generally accepted industry standards for the provision of similar services.

7.2              DisclaimerExcept as expressly set out in section 7.1, the Developer makes no representations, warranties or conditions, express, statutory or implied, with respect to the Customer’s Website or the Services to be provided by the Developer hereunder.  The Developer expressly disclaims all other representations, warranties or conditions, including without limitation any implied or statutory warranties or conditions of merchantability, title, non-infringement or fitness for a particular purpose.  The Developer does not warrant that the Customer’s Website will meet the Customer’s requirements or that it will function uninterrupted, error free or that all defects in the code underlying the Customer’s Website will be corrected.  The Developer makes no representation or warranty regarding accessibility to, or the privacy or security of, any of the Customer’s information, files or data, or any Customer Materials or Content.  The Customer assumes the entire risk as to the results and performance of the Customer’s Website.  The Customer acknowledges that it has or will have independently determined that all Services to be provided hereunder meet its business requirements and that it has not relied on any representation by the Developer as to the suitability of any particular Services for any particular purpose.  The Developer does not represent or warrant that the Customer’s Website will be capable of achieving any particular result or results in the Customer’s business or operations.  Except as expressly stated otherwise in this agreement, the Customer’s Website and all Services to be performed hereunder are provided and licensed on an “as is” basis without warranty or representation of any kind.

7.3              No Liability.  Notwithstanding anything herein contained to the contrary, in no event whatsoever will the Developer, its directors, officers, employees, agents, contractors or affiliates, be liable for any claim for:

(a)               punitive, exemplary or aggravated damages;

(b)               damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of any files, data, information, Customer Materials or Content (including computer resources and any stored data);

(c)               indirect, consequential or special damages of any kind;

(d)               contribution, indemnity or set-off in respect of any claims against the Customer by any third party;

(e)               any damages whatsoever related to any hardware, software, goods or services not developed or provided by the Developer; or

(f)                any damages whatsoever relating to interruption, delays, errors or omissionsor or any other economic loss.

7.4              Limitation on Liability.  Without limiting the generality of sections 7.1 through 7.3 inclusive, the maximum total liability of the Developer, and its suppliers, directors, officers, agents, representatives, shareholders and employees, for any claim whatsoever, under any circumstances, regardless of the cause of action and including without limitation claims for breach of contract, tort, negligence or otherwise, and the Customer’s sole remedy therefore, shall be strictly limited to an award for direct, provable damages not to exceed the amount paid by the Customer to the Developer hereunder.

7.5              Limitation on Time.  Notwithstanding anything herein contained to the contrary, no action arising out of or relating to this Agreement, or the Developer’s obligations hereunder, regardless of form, may be brought by the Customer more than six (6) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by, the Customer.

7.6              Reasonableness of Limitations.  The parties agree that the limitations contained in this section 7 are reasonable in scope and that the terms and conditions of this agreement have been negotiated taking into account such limitations.

8.                 INDEMNIFICATION

8.1              Indemnity by the Customer.  The Customer agrees to defend, indemnify and hold the Developer, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including reasonable legal costs, that the Developer may incur as a result of or in connection with any of the following:

(a)               the Customer’s use of the Customer’s Website in any manner not contemplated by the Specifications;

(b)               the Customer’s engagement in any activity that is illegal, offensive or immoral or that infringes on the rights of privacy or publicity, or any intellectual or proprietary rights of any third party;

(c)               any valid claim that the Customer’s use of any Customer Materials or Content infringes the intellectual property rights of any third party;

(d)               any claim or suit made by any client or customer of the Customer; or

(e)               any breach by the Customer of the Customer’s obligations under this Agreement.

8.2              Indemnity by the Developer.  The Developer agrees to defend, indemnify and hold the Customer, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including reasonable legal costs, that the Customer may incur as a result of or in connection with any of the following:

(a)               any valid claim that any Design Intellectual Property infringes the intellectual property rights of any third party (for which the Developer agrees it will use commercially reasonable efforts to replace any such Design Intellectual Property with other original intellectual property that has similar functionality);

(b)               any claim or suit made by any client or customer of the Developer; or

(c)               any breach by the Developer of the Developer’s obligations under this Agreement.

8.3              No Right to Sue. The Customer shall have no further right to sue the Developer for damages or additional compensation.

 

9.                 CONFIDENTIALITY AND PUBLICITY

9.1.1 ConfidentialityExcept for the specific rights granted by this Agreement, neither party shall use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other shall use the same degree of care to protect the confidentiality of such Confidential Information as it uses to protect its own confidential information, but in no event less than reasonable care, including ensuring that such information is disclosed to employees, agents, suppliers, affiliates and contractors on a need to know basis and that all such employees and agents have agreed in writing not to disclose or use Confidential Information. Within fifteen (15) days of the request of the disclosing party, and in its sole discretion, the receiving party shall either return to the disclosing party originals and copies of any Confidential Information and all information, records and materials developed from them by the receiving party, or destroy the same. Either party may only disclose the general nature, but not the specific terms and conditions, of this Agreement without the prior consent of the other party.  The disclosure obligations contained herein shall continue for a period of ten (10) years after expiration or termination of this Agreement.

9.1.2 Privacy and Personal Information. Each party agrees that it will not, without the prior written consent of the other party, disclose or make available any Personal Information (as that term is defined in the Personal Information Protection and Electronic Documents Act) to any other person or entity except for designated employees of the other party who have a need to access the Personal Information in order to fulfill the terms of this Agreement. No employee shall be designated by the either party to access the Personal Information disclosed or transferred by the other party unless such employee agrees to hold such Personal Information in confidence and private and limit the use of such Personal Information to the uses permitted hereby pursuant to and in accordance with a written covenant at least as restrictive as the covenant given by each party contained in this section 9.1.2.

 

9.1.3 Ibid. Each party hereto agrees that the Personal Information provided to it by the other party hereto shall only be used for such purposes as are specified herein or as otherwise permitted in writing by the disclosing party and that the other party shall not sell, transfer or disclose such Personal Information to any other party or use the Personal Information for any other purpose other than the purposes specified in this Agreement. Each other party will follow all rules and regulations of the disclosing party with respect to the use, destruction, retention and security of the Personal Information disclosed by the disclosing party.

 

9.1              Publicity and PromotionUpon execution of this Agreement, each party shall be permitted to disclose that the other is a client of such party, but the specific terms of this Agreement shall remain confidential. 

9.2              Use of Customer’s Name and Logo.  The Developer shall be entitled to use the Customer’s business name and logo on the Developer’s Website to identify the Customer as a customer of the Developer and the Developer shall be permitted to hyperlink from the Developer’s Website to the Customer’s website for the purposes of providing an example of the Developer’s services.

9.3              Developer Credit.  The parties agree that there will appear on the Customer’s Website as “created by” “DIT Web Solutions Inc.” or similar, in a reasonably noticeable style and font, reference to the fact that the Website was designed and developed with the assistance of the Developer and a hyperlink to the Developer’s Website or internet mail address.

9.4              Non-Solicitation. During the term of this Agreement and for a period of two (2) years thereafter, the Customer shall not knowingly, on his or her own behalf or on behalf of or in connection with any other entity, directly or indirectly, in any capacity whatsoever, including as an employer, employee, principal, agent, joint venturer, partner, shareholder or other equity holder, independent Employee, licensor, licensee, distributor, suppler, partnership, trust, unincorporated association, or otherwise:

 

(a)                canvass or solicit the business of (or procure or assist the canvassing or soliciting of) any Employee known to the Developer as a result of his or her association with Customer, for the purposes of competing with the Business;

 

(b)               accept (or procure or assist the acceptance of) any business from any Employee known to the Customer as a result of his or her association with the Development during the period of this Agreement, for the purposes of competing with the Business (unless agreed to in writing by the Developer, which consent may be unreasonably withheld in the Developer’s sole and absolute discretion);

 

(c)                canvass or solicit the business of (or procure or assist the canvassing or soliciting of) any Prospective Employee or Supplier known to the Customer as a result of his or her association with the Developer during the period of this Agreement, for the purposes of competing with the Business; or

 

(d)               otherwise, contact, approach or solicit (or procure or assist the contacting, approaching or soliciting) any entity known to the Customer through his or her association with the Developer prior to the date of this Agreement in such a way as may cause detriment to the Developer.

 

10.             TERM AND TERMINATION

10.1          TermThe term of this Agreement (the “Term”) commences on the date set out above and terminates upon the performance by each party of its respective obligations hereunder, unless earlier terminated in accordance with the provisions of this Agreement.

10.2          Termination.  Without limiting any other rights or remedies available to either party, at law or in equity, either party has the right to terminate this Agreement immediately and without notice, if:

(a)               the other party is in breach or default of any of its obligations under this Agreement, other than in regard to payment, and such breach or default continues unrectified for thirty (30) days following the provision of written notice of such breach or default;

(b)               the other party voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against the other party under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to the other party’s assets;

(c)               the other party ceases to carry on its business;

(d)               any payment has not been made when due under this Agreement and such non-payment continues for five (5) Business Days; or

(e)               all Customer Materials, including all coding, design and Website, remains property of the Developer until all payments are made in full in accordance with section 5 and the Specifications of this Agreement. Until such payment is made, the Developer has the right to refuse access to any and all data relating to the Customer’s Website, which may include but is not limited to changing passwords, taking data offline or contacting any third party host or supplier and requiring the removal of any and all Customer Materials, until all Fees are received by the Developer in full.

11.             GENERAL PROVISIONS

11.1          Survival.  The termination of expiration of this Agreement will not affect the survival and enforceability of any provision of this Agreement which is expressly or impliedly intended to remain in force after such termination or expiration.

11.2          Assignment.  This Agreement may not be assigned by either party without the prior written consent of the other party.  Any attempt to assign any of the rights, duties or obligations of a party pursuant to this Agreement, without the prior written consent of the other party is void and of no effect.

11.3          Dispute Resolution.  Any dispute regarding the interpretation, compliance with or breach of this Agreement will be negotiated in good faith between the parties commencing upon written notice from one party to the other containing a summary of the dispute (the “dispute notice”).  All negotiations will be confidential and inadmissible in any subsequent proceeding without both parties’ written consent.  If the dispute is not resolved by negotiation within twenty (20) days following the receipt of the dispute notice, the parties will refer the dispute to a mediator acceptable to both parties for non-binding mediation.  The costs of mediation shall be shared equally by the parties.  If the dispute is not settled by mediation within fifty (50) days of receipt of the dispute notice, or if a mutually acceptable mediator is not selected within thirty (30) days of receipt of the dispute notice, the dispute shall be settled by binding arbitration as follows.  Within sixty (60) days of receipt of the dispute notice, each party shall designate one arbitrator.  Within seventy (70) days of receipt of the dispute notice, the two arbitrators so designated shall appoint a third arbitrator mutually acceptable to them, who shall alone hear and determine the dispute.  If the two designated arbitrators are unable to agree upon a third arbitrator within seventy (70) days of receipt of the dispute notice, the third arbitrator shall be appointed by a Judge of the Ontario Court as soon as practicable.  The arbitration shall be held in accordance with the provisions of the Arbitration Act (Ontario), with all hearings to take place in the Province of Ontario, unless otherwise agreed by the parties.  Any judgment, decision or award rendered by such arbitrator shall be final and binding and shall not be the subject of any further court proceeding except in connection with the enforcement of any such award by a court of competent jurisdiction.  The costs of arbitration, including legal fees and disbursements of the parties, shall be allocated by the arbitrator in the manner that the arbitrator, in his or her discretion, considers appropriate.  This section does not affect the rights of the parties to seek injunctive relief when appropriate to enforce their respective rights hereunder.

11.4          Notice.  Any notice or other communication required or permitted to be given pursuant to this Agreement shall be in writing, shall be addressed to the relevant party at the address set out herein for such party, and shall be given by prepaid first‑class mail or by hand‑delivery as hereinafter provided.  Any such notice or other communication, if mailed by prepaid first‑class mail at any time other than during a general discontinuance of postal service due to strike, lockout or otherwise, shall be deemed to have been received on the fourth Business Day after the post‑marked date thereof, or if delivered by hand shall be deemed to have been received at the time it is delivered to the applicable address set out herein for such party to an individual at such address having apparent authority to accept deliveries on behalf of the addressee.  Notice of change of address shall also be governed by this section.  In the event of a general discontinuance of postal service due to strike, lock‑out or otherwise, notices or other communications shall be delivered by hand and shall be deemed to have been received in accordance with this section.

11.5          Time of the Essence.  Time shall be of the essence in connection with this Agreement.

11.6          Further Assurances.  Each of the parties to this Agreement agrees that it will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may reasonably require from time to time for the purpose of giving effect to the provisions of this Agreement and will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.

11.7          No Limit on Additional Remedies.  Nothing contained in this Agreement shall limit any other remedies which any party may have as a result of the default of the other party under this Agreement, and the parties agree that remedies for breach of this Agreement may be in equity by way of injunctive relief or specific performance, as well as for damages and any other relief available, whether in equity or in law.

11.8          Governing Law.  This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein.  Each party hereby submits to the non-exclusive jurisdiction of the Province of Ontario in connection with this Agreement.

11.9          Enurement.  This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors, affiliates and permitted assigns.

11.10      Force Majeure.  The Developer will have no obligation to provide Services to the extent and for the period that the Developer is prevented from doing so by reason of force majeure or any cause beyond its reasonable control, including without limitation the inability to use or the failure of any third party telecommunications carrier or other services. Any delay in or failure of performance by either Party under this Agreement (other than an obligation for the payment of money), will not be considered a breach of this Agreement and will be excused, to the extent caused by any occurrence beyond the reasonable control of such party, including but not limited to, acts of God, fire, flood, civil commotion, riot, war (declared and undeclared), revolution, embargoes, or pandemic for the duration of such event and for such a time thereafter as is reasonable to enable the Parties to resume performance under this Agreement.

 

PRICE SCHEDULE FOR ADDITIONAL SERVICES

 

Any additional services will be charged at $125 per hour as agreed between the Developer and the Customer.


 

WARRANTY

 

Developer will make every effort to ensure that code will be error free in accordance with the specifications on the launch date. Developer stands behind this commitment, in that if any errors are discovered or encountered within the first thirty (30) days after the launch date, Developer will repair these errors until corrected in full at no cost to Customer.

DIT RESERVES ITS RIGHT TO UPDATE THIS AGREEMENT FROM TIME TO TIME BY GIVING REASONABLE NOTICE TO THE CUSTOMER OF ANY MATERIAL CHANGES THAT MAY ADVERSELY AFFECT THE AGREEMENT.