1.1 In these Terms of Service, the following words and expressions shall (unless the context shall otherwise require) bear the following meanings:
“Agreement” means the agreement between The Toronto Web Design Company, HST Number 70391 5314, from here on to be referred to as “Company” and the person purchasing the Services or Product, from here on to be referred to as “Client”, governing the provision of Services or Product outlined in the Customer Order Form.
“Business Day” means any day except Saturday, Sunday or a Public holiday held in Canada or the U.S.
“Content” means text, graphics, logos, photographs, images, animated images, sound, illustrations, and other material featured, displayed or used, or to be featured, displayed or used, in the Services or Product.
“Closing Date” means the day on which the payment has been made in full and the rights of ownership have been transferred from the Company to the Client.
“Customer Order Form” means the document detailing the Services or Product to be delivered to the Client as part of this Agreement, prepared and delivered by a representative of The Toronto Web Design Company.
“Documentation” means the user manuals, technical documentation, and training manuals to enable a reasonably skilled computer operator to run the website.
“Due Notice” means the period of notice (if any) for early termination of the agreement, specified in the Customer Order Form. In the event that multiple Forms are prepared, the latest version prevails.
“Fees” means The Toronto Web Design Company’s fee for providing the services as detailed in the Customer Order Form.
“Hosting Company” means the third-party hosting service provider which The Toronto Web Design Company has engaged to carry out hosting services for the Client.
“Product” means the product or part thereof to be provided by The Toronto Web Design Company to the Client under the Agreement, as detailed in the Customer Order Form.
“Services” means the services or part thereof to be provided by The Toronto Web Design Company to the Client under the Agreement, as detailed in the Customer Order Form.
“Start Date” means the date on which the Client has made a successful pre-payment for the Services or Product, using PayPal, debit or credit, through a payment link provided by The Toronto Web Design Company or through e-transfer, addressed to any valid email at the domain @toronto-web-design.ca.
1.2 These Terms of Service are the only Terms of Service that shall govern the Agreement, with the entire exclusion of any other express terms and Terms of Service, unless otherwise agreed specified by The Toronto Web Design Company.
1.3 The headings in these Terms of Service are inserted only for convenience and shall not affect its construction.
1.4 In the event of a conflict between the provisions of these Terms of Service and the Customer Order Form, the Customer Order Form shall prevail unless otherwise expressly stated.
2.1 In consideration of the payment of the Fees, the Company shall provide the Services or Product subject to the Terms of Service.
3.1 The Company shall from the Start Date:
3.1.1 Advise the Client in relation to all matters arising in the course of rendering the Services or Product and where appropriate recommend changes to the Customer Order Form.
3.1.2 Where necessary, design, write and supply software to ensure that the Services or Product are in accordance with and conform to the Customer Order Form.
3.2 Any Content that the Client delivers or supplies towards the creation of the Services or Product must be delivered to the Company, where relevant, in the agreed format and the Client shall ensure that all such Content is correct and shall update it when the Company require the Client to do so.
3.3 The Company may offer to provide the Client with free stock images labeled for reuse with modification. This is limited to a maximum number of 50 images.
3.4 After all outstanding funds have been released to the Company and ownership has been transferred to the Client, the Client remains responsible for ensuring that none of the Content infringes copyright laws.
4.1 The Client shall provide the Company with all information, documentation and assistance that the Company reasonably request to enable the Company to properly provide the Services or Product to the Client under the Agreement. The Company shall not be liable for any delay in the delivery of the Services or Product caused by any delay in providing, or inaccuracy of, any such information, documentation or assistance.
4.2 To facilitate the provision of the Services or Product to the Client, the Client shall give the Company’s personnel such access to the Client’s personnel and premises as the Company may reasonably require to fulfil the Company’s duties and obligations.
4.3 The Client must submit all communication, including requests for revisions, acceptance of the product, and e-transfers, to any valid email at the @toronto-web-design.ca domain.
5.1 The Client may at any time by written notice request, and the Company may at any time recommend, variations to the Services or Product and the Customer Order Form.
5.2 Any amendment or variation to the Services or Product or Customer Order Form may only be made with the prior written consent by a representative of the Company. The Company may:
5.2.1 Levy, in addition to the Fees, an extra charge to the Client, at either a fixed price as decided by the Company, or at the Company’s standard hourly rate, as valid at the time of the request, to reflect the cost and expenses of any additional work required by the Company to provide such amendment or variation.
5.2.2 Postpone the final deadline specified in the Customer Order Form by a period of time that the Company determines appropriate.
5.3 If no Customer Order Form is prepared, revisions to the Services or Product are limited to a single round, delivered in a single document or email. If the client requests additional revisions, the Company may charge at the hourly rate valid at the time of request.
6.1 Upon completion of a project milestone calling for Client approval, as specified in the Customer Order Form, the Company shall submit for the Client’s written approval the elements of the Services or Product that the Company has designed and developed to meet that milestone. The Client’s written approval of the Company’s work shall be the Client’s acceptance that those elements of the Services or Product conform substantially to the Customer Order Form, and that they have been carried out to the Client’s satisfaction.
6.2 Prior to delivery of the Services or Product, the Company shall carry out the Company’s standard acceptance tests. If the Client agrees, in written format, to take on the onus of said task, the testing may take place after delivery, in which case the Client assumes all responsibility for the testing and quality of the Services or Product.
6.3 If the Services or Product materially fail the Company’s standard acceptance tests and upon investigation this proves to be as a result of an error by the Client, the Company shall be entitled to charge for the costs of the investigation, as well as the costs incurred by making the necessary changes to the Services or Product, at either a fixed price as decided by the Company, or at the Company’s standard hourly rate, as valid at the time of the investigation, and also including fees for additional software required for the completion of the task in question.
6.4 If the Services or Product materially fails to pass the Company’s standard acceptance tests due to human error incurred by the Company, the Company shall determine the causes of the failure and make any changes to the Services or Product necessary to ensure that the Services or Product pass the Company’s standard acceptance tests, without additional charges.
6.5 If the Services or Product materially fails to pass the Company’s standard acceptance tests due to errors incurred by a third party, the Company may charge additional costs for the investigation, as well as the costs incurred by making the necessary changes to the Services or Product, at either a fixed price as decided by the Company, or at the Company’s standard hourly rate, as valid at the time of the investigation, and also including fees for additional software required for the completion of the task in question.
6.6 Notwithstanding Section 6.1, only the final delivery date shall be legally binding, specified as the total development time from the Start Date in the Customer Order Form. Timelines are non-binding and are subject to flexibility, so long as the total development time remains the same.
6.7 Risk of loss or damage to the Services or Product, the Content and/or the Documentation shall pass to the Client on the Closing Date.
6.8 If the Client delays the delivery of revisions or acceptance of the Services or Product, the Company reserves the right to delay the delivery of the Services or Product by a time frame equivalent to the delay incurred by the client.
7.1 This Section C shall apply where the Client has hired the Company to provide a hosting service for the Client’s Services or Product (“Hosting Service”).
8.1 The Company shall install or arrange the installation of the Client’s Services or Product on the Server and make the Client’s Services or Product are available to the public via a connection to the internet.
8.2 In the event that access to the Client’s Services or Product exceeds the permitted bandwidth, storage allocation, or both (as notified to the Client), the Company shall be entitled, in the Company’s absolute discretion: to (i) suspend access to the Services or Product; or (ii) move the Services or Product to a different server and/or increase the Fees for the Hosting Service commensurately.
8.4 The Company may subcontract the provision of the Hosting Service under Condition 21.1.
9.1 The Client understands that the Hosting Company is a third party providing hosting services, and that as an intermediary between the Hosting Company and the Client, the Company is not liable for any security issues or service quality issues that may arise as a result of the hosting service.
9.3 The Client undertakes that any material contained in or linked to the Client’s Services or Product and (if applicable) contained in any discussion group, forum, chat room or bulletin board on the Client’s Services or Product is and shall remain: (i) legal, decent, honest and truthful; and (ii) compliant with the Personal Information Protection and Electronic Documents Act 2004 (Canada) and all other applicable laws and regulations.
9.4 The Client shall: (i) ensure at all times the accuracy, lawfulness, currency and legislative and regulatory compliance of the Services or Product; and (ii) be solely liable for any faults or misleading, inaccurate, infringing, defamatory or otherwise unlawful or actionable material contained or referred to in the Services or Product.
9.5 The Client is solely responsible for maintaining the confidentiality and security of the Client’s internet accounts and usage, including use of the Client’s unique log-on ID.
9.6 The Client acknowledges and agrees that the Company may be required by a law enforcement agency or for any other legal or regulatory purposes: (i) to monitor the Content and traffic on the Client’s Services or Product; and (ii) where necessary to support or defend any dispute, action, cause or other matter that arises, to give evidence of the Client’s use of the Client’s Services or Product or allow use of the Client’s unique log-on ID.
10.1 The Hosting Service shall commence on the Start Date and continue for the period specified in the Customer Order Form, unless terminated sooner in accordance with the Agreement.
11.1 The Company accordingly shall not be liable the safety, security, quality of service levels, nor for any loss (including, without limitation any indirect consequential or special loss, damage, costs or expenses or other liability incurred as a result (directly or indirectly) of: (i) server downtime; (ii) inability to access the Services or Product; (iii) loss of or damage to any files, data or the Services or Product; and (iv) any non-receipt, misrouting or failure of email or other message transfer, except to the extent that: (i) the subcontractor accepts such liability under the relevant subcontract with the Company; and (ii) the Company are actually indemnified for such liability.
11.2 In the event that the Client has hired the Company for maintenance of the Service or Product after the Closing Date, it is the Client’s responsibility to inform the Company, before the quote for the maintenance is made, whether any other parties have made updates or changes to the Product or Service.
SECTION D: PROVISIONS APPLYING TO ALL SECTIONS OF THE AGREEMENT
12.1 In consideration of the performance of the Company’s duties under the Agreement the Client shall pay to the Company the Fees.
12.2 The Company may invoice the Client at periodic intervals, as the Company consider appropriate before final completion of the Services or Product.
12.2 The Company shall be entitled, at the Company’s absolute discretion but not without valid reason (including, without limitation, to reflect changing arrangements with any subcontractor or third party supplier or changing legal, regulatory or business requirements), to increase the Fees for the Hosting Service by giving written notice to the Client prior to preparing the next invoice.
12.3 The Fees exclude Harmonized Sales Tax which, if payable, shall be charged to the Client.
12.4 In the event that travel is required for meetings or training sessions, the Company reserves the right to include costs of travel in the Fees.
12.5 Once the Services or Product are complete, the Company will notify the Client, and the Client will have two (2) weeks to approve or request revisions to the Services or Product, and make the payment in full, unless otherwise agreed upon by the Company, in written format. After the two (2) week period, interest begins accumulating at a rate subject to change. The Company reserves the right to: (i) suspend the performance of the Services or Product; and (ii) suspend the Client’s access to the Services or Product.
13.1 Where the Client contract for the Company to arrange for a domain name registration, the Company shall procure the registration as per the Client’s request in writing. However, the Company shall not be liable in the event that relevant regulatory authority refuses to register the domain name, or suspends or revokes any registration. The Company shall not act as the Client’s agent or on the Client’s behalf in any dealings with regulatory authorities.
13.3 The Client confirms and warrants that: (i) the Client is the legal owner of any name supplied by the Client for use as a domain name in connection with the Services or Product (or have the authority of the legal owner to use such name); (ii) that such use of name does not infringe the rights of any third party; and (iii) that the Client is the owner of any trademark in any such name (or have the authority of the owner of any trademark to use such name).
14.1 Ownership of and Intellectual Property Rights pertaining to the Content and Services or Product are transferred to the Client after the Closing Date (after payment has been made in full).
14.2 Notwithstanding Section 14.1, all intellectual property rights in the programming, tools, skills, coding and techniques the Company acquires in developing the Services or Product or any part thereof or otherwise in performing the Services or Product are owned by and shall belong to the Company and the Company shall be free to use and adapt any or all of the same in or for the purposes of any other project(s), unless otherwise agreed upon by the Company.
15.1 Either party in the Agreement (the “indemnifying party”) agrees to indemnify the other (the “innocent party”) against any liability, loss, costs and damage suffered by the innocent party as a result of any third party intellectual property rights infringement claim made against the innocent party in respect of: (i) the innocent party’s use (pursuant to this Agreement) of any intellectual property rights licensed to the innocent party by the indemnifying party under this Agreement; or (ii) any breach of any warranty given in Condition 14.3. This indemnity is conditional upon the innocent party seeking to enforce this indemnity:
15.1.1 Giving written notice to the indemnifying party as soon as reasonably possible after it has received written notice of the threat or existence of any such threat.
15.1.2 Making no statement or admission of liability in respect of the claim and giving the indemnifying party sole authority to defend or settle the claim at the indemnifying party’s cost and expense.
15.1.3 Giving all reasonable assistance requested by the indemnifying party in connection with defending or settling the claim (at the indemnifying party’s cost and expense).
15.1.4 Not having caused or contributed to the cause of the claim by using the indemnifying party’s intellectual property rights other than in accordance with the terms of the Agreement.
15.2 The indemnity in Section 15.1 shall not apply where the third party intellectual property rights infringement claim results from: (i) any alteration or modification to the Services, Product, or Content made by the Client or on the Client’s behalf by any third party or the Company at the Client’s request; or (ii) the Client’s use of the Services or Product or any part of it in combination with software not supplied or approved by the Company or for any purpose not envisaged in the Customer Order Form.
16.1 The Company warrants and represents to the Client:
16.1.1 That the Services or Product shall be provided with reasonable care and skill, in accordance with usual industry procedure and in a timely and effective manner.
16.1.2 The Services or Product shall conform substantially to the Customer Order Form after successful completion of the Company’s standard acceptance tests and any other acceptance tests specified in the Customer Order Form.
16.2 In the case of a breach of the warranty contained in Section 16.1, the Company may choose to either (i) investigate the and remedy the breach at no additional cost; or (ii) refund an amount that is proportional to the breach.
16.3 The Company shall have no liability or obligation under the warranty in Section 16.1 unless the Company has received written notice of the error or defect in the provision of the Services or Product in question no later than 1 month after the error or defect occurred. Any such notice must detail an example of the error or defect in question and the detrimental effects of said error or defect.
16.4 The Company reserves the right to terminate any warranty with immediate effect in the event that the Client’s website has been worked on by anyone else other than the Company.
16.5 Except as expressly set out in these Terms of Service, all representations, warranties, terms and Terms of Service, whether oral or written, express or implied by law, custom, statute or otherwise, and including but not limited, to satisfactory quality or fitness for any particular purpose, are excluded to the fullest extent permitted by law.
17.1 The Company shall not be liable for any defects in the Services or Product which arise as a result of: (i) Use of the Services or Product in conjunction with software or systems not expressly notified to the Client by the Company in writing or for any purpose not envisaged in the Customer Order Form. (ii) Defects, faults or individual workings of the Client’s systems. (iii) Misuse, alteration, maintenance, or interference by the Client or any third party (including virus and hacker attacks). (iv) Power failure, power fault or electrical interference.
17.2 The Company’s maximum aggregate liability under or in connection with the Agreement, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed the higher of (a) the Fees payable to the Company under the Agreement or (b) the proceeds received by the Company under the Company’s professional indemnity insurance policy in respect of the liability in question.
17.3 Unless otherwise provided in the Agreement, the Company shall not be liable to the Client for any increased costs or expenses, loss of profit, business, contracts, revenues or anticipated savings or loss of software, application programs or computer held data or any indirect, consequential or special loss of any kind, howsoever arising and whether caused by the Company’s negligence or otherwise, which may be suffered by the Client and arise out of or in connection with the supply of the Services or Product or their use.
18.1 Each party shall treat as confidential all information obtained from the other under or in connection with the Agreement.
19.1 The Client may choose to terminate the agreement at any time, and understands that by choosing to do so, the Client forfeits the deposit.
19.2 Either of the parties may terminate the Agreement if the other party: (i) Commits any act of bankruptcy or compounds with its creditors; (ii) A petition or a receiving order in bankruptcy is presented or made against it; (iii) A petition for an administration order is presented in relation to it; or (iv) A resolution or a petition to wind up is presented otherwise than for a solvent re-construction or amalgamation, or a receiver, administrative receiver or administrator is appointed.
20.1 The Client shall not assign, transfer or in any other manner make over to any third party the benefit and/or burden of the Agreement without the Company’s prior written consent, which shall not be unreasonably withheld.
21.1 The Company may in whole or in part assign, transfer, delegate, subcontract or in any other manner make over to any third party any of the Company’s rights or obligations under the Agreement at any time.
22.1 Neither of the parties shall be deemed to be in breach of the Agreement or otherwise liable to the other for any delay in performance or any non-performance of any obligations under the Agreement if and to the extent that the delay or non-performance is due to an event or circumstance beyond the reasonable control of that party.
23.1 No failure, delay or partial exercise on the part of either of the Company in exercising any right, power or privilege under the Agreement shall operate as a waiver of it, nor shall it preclude any other or further exercise of it.
23.2 Except as otherwise expressly agreed in writing the Client shall have no rights of set-off, abatement or withholding (statutory or otherwise).
23.3 If any provision of the Agreement is held to be void or declared illegal, invalid or unenforceable for any reason whatsoever, that provision shall be divisible from the Agreement and shall be deemed deleted from the Agreement and the validity of the remaining provisions shall not be affected.
23.4 The Agreement embodies and sets forth the Company’s entire agreement and understanding and supersedes all prior oral or written agreements, representations, understandings or arrangements relating to the subject matter of the Agreement, with the exception of the Customer Order Form. Neither of the parties shall be entitled to rely on any agreement, representation, understanding or arrangement not expressly set forth in the Agreement.
23.5 The Agreement shall be governed by and construed in accordance with the laws of Canada and the parties irrevocably submit to the exclusive jurisdiction of the courts of Canada.
23.6 The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement and no person other than the parties to the Agreement shall have any rights under it, nor shall it be enforceable under that Act by any person other than the parties to it.
23.7 The Company perform all of its obligations under the Agreement as an independent contractor and nothing in the Agreement shall create or be deemed to create a partnership, joint venture of the relationship of principal and agent or employer and employee.