These Terms and Conditions shall apply to the provision of Website, App or Interactive Media Development Services by the Supplier to the Client.
In the event of conflict between these Terms and Conditions and any other terms and conditions (of the Client or otherwise), the former shall prevail unless expressly otherwise agreed by the Supplier in writing.
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
Means the entire content of this Terms and Conditions document, along with any Proposal document(s) and any other Supplements provided by the Supplier.
Means all text, images, media and other content and functionality displayed through a web browser at a URL (unique resource location) nominated by the Client
An interactive application running on a mobile phone or tablet computer
“The Interactive Media”
An interactive application running on a mobile phone or tablet computer
Means a day (excluding Saturdays) on which banks generally are open for the transaction of normal banking business (other than solely for trading and settlement in euros)
An individual, company, charity or any other organisation, incorporated or otherwise, that is purchasing services from Surface Impression Ltd.
“The Commencement Date”
Means the commencement date for this Agreement as set out in the schedule or in writing by the Supplier as acceptance of the Client’s order for the Services.
Means the charges in respect of the Services
Means a document describing approaches to the development of a website, app or interactive media, estimated fees and production schedules for services to be provided by the Supplier to the Client
Means the services to be provided by the Supplier to the Client as set out in a schedule, quotation or proposal
Means all documents, images, files, media formats or other components as supplied by the Client to the Supplier for the purpose of developing and creating the Website, the App or the Interactive Media, and as created or otherwise sourced by the Supplier in the course of developing and creating the Website , the App or the Interactive Media. This includes, but is not limited to, source code, text, graphics, images and animations.
Surface Impression (Canada) Limited, a company incorporated federally in Canada with corporation number 1022654-8 and address 111 Peter Street, Suite 700, Toronto, Ontario M5S 1M2
Any reference in these Terms and Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
3. The Service
With effect from the Commencement Date the Supplier shall, in consideration of the Fees being paid in accordance with the terms of payment under clause 5.i will provide the services expressly identified in the schedule, quotation or proposal or otherwise agreed under this Agreement.
The Supplier will use reasonable care and skill to perform the services identified in the schedule, quotation or proposal or otherwise agreed under this Agreement.
The Supplier is an independent contractor, not an employee of the Client or any company affiliated with the Client. The Supplier shall provide the Services under the general direction of the Client, but Supplier shall determine, in the Supplier’s sole discretion, the manner and means by which the Services are to be accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. All rights, if any, granted to the Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. the Client is free to engage others to perform services of a similar nature to those provided by the Supplier, and the Supplier shall be entitled to offer and provide services to others, solicit other clients and otherwise advertise the services offered by the Supplier.
The Client agrees to pay the Fees in accordance with the terms of payment under clause 5.i
In addition the Supplier shall be entitled to recover from the Client his reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
The Client will pay the Supplier for any additional services provided by the Supplier that are not specified in the schedule, quotation or proposal in accordance with the Supplier’s then current, applicable daily rate in effect at the time of the performance or such other rate as may be agreed. Any charge for additional services will be supplemental to the amounts that may be due for the Expenses.
Where the Services have been quoted in stages in the Proposal, then each stage shall be undertaken in accordance with these Terms and Conditions and the Supplier shall be entitled to be paid an agreed percentage of the Service’s fees at each stage.
All sums payable by either party pursuant to this Agreement are exclusive of any taxes (except corporation tax) or other taxes on profit, for which that party shall be additionally liable.
All payments required to be made pursuant to this Agreement by either party shall be made within 30 days of the date of the relevant invoice in Canadian Dollars in cleared funds to such bank as the other party may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that party is required to deduct or withhold by law.
The time of payment shall be of the essence of these Terms and Conditions. If the Client fails to make any payment on the due date in respect of the price or any other sum due under these terms and conditions then the Supplier shall, without prejudice to any right which the Supplier may have pursuant to any statutory provision in force from time to time, have the right to charge the Client interest on a daily basis at an annual rate equal to the aggregate of 4 per cent and the base rate of the Bank of Canada from time to time on any sum due and not paid on the due date. Such interest shall be calculated cumulatively on a daily basis and shall run from day to day and accrue after as well as before any judgement.
6. Delivery of Materials & the Service
The Client will endeavour to provide requested Materials by the deadlines set by the Supplier. The Client understands that delays to the supply of the Materials will result in a delay to the completion of the Service and that the Client shall be liable to the Supplier for any additional costs incurred by the Supplier as a result of the delay.
The delivery times of the Service will be presented to the client as reasonable estimates and the Supplier shall not be responsible for any delay that is not directly attributable to the fault of the Supplier. Time shall not be of the essence of the contract unless it is expressly agreed in writing.
7. Variation & Amendments
If the Client wishes to vary any details of the schedule, quotation or proposal it must notify the Supplier in writing as soon as possible. The Supplier shall endeavour to make any required changes and any additional costs thereby incurred shall be invoiced to the Client.
If, due to circumstances beyond the Supplier’s control, it has to make any change in the arrangements relating to the provision of the Services it shall notify the Client forthwith. The Supplier shall endeavour to keep such changes to a minimum and shall seek to offer the Client arrangements as close to the original as is reasonably possible in the circumstances.
8. Intellectual Property
All Materials provided by the Client and the copyright, design rights and trademarks therein shall remain the property of the Client. The Supplier shall use such Materials under licence for the sole purpose of completing the Project.
The Client warrants that they have obtained all relevant permissions and rights for the use of any Material that they provide that are owned by, or were otherwise created by, a third party.
The Supplier shall bear no responsibility for ensuring that Site Materials supplied by the Client carry with them the appropriate third party permissions for use and reproduction.
The Supplier shall retain ownership of the copyright subsisting in any and all Material created by them. The Client shall use such Materials under royalty-free, irrevocable, worldwide licence for the purpose of the website, the app or the interactive media.
This Agreement does not transfer or grant to the Supplier any right, title or interest in any intellectual property rights belonging to the Client.
The Supplier reserves all copyright and any other rights (if any) which may subsist in the products of, or in connection with, the provision of the Supplier’s services or facilities.
The Supplier may terminate the Agreement forthwith if:the Client is in breach of any of its obligations hereunder; or
the Client has entered into liquidation (other than for the purposes of a bona fide amalgamation or reconstruction) whether compulsory or voluntarily or compounds with its creditors generally or has an administrator, administrative receiver or receiver appointed over all or a substantial part of its undertaking or assets; or
the Client has become bankrupt or shall be deemed unable to pay its debts through insolvency or
the Client ceases or threatens to cease to carry on business; or
any circumstances whatsoever beyond the reasonable control of the Supplier (including but not limited to the termination of the service through no fault of the Supplier) arise that necessitate for whatever reason the termination of the provision of services.
In the event of termination under clause 9.i the Supplier shall retain any sums already paid to it by the Client without prejudice to any other rights the Supplier may have whether at law or otherwise.
The Client may terminate this Agreement forthwith at any time. In the event of termination under this clause 8.iii the Client shall be liable to the Supplier for Services performed by the Supplier as at the date of Termination unbilled at that date, together with reasonable incidental expenses for materials used and for third party goods and services supplied in connection with the provision of the Services.
Either party may sub-contract the performance of any of its obligations under this Agreement without the prior written consent of the other party. Where either party sub-contracts the performance of any of its obligation under this Agreement to any person with the prior consent of the other party, that party shall be responsible for every act or omission of the sub-contractor as if it were an act or omission of the party itself.
The Supplier will exercise commercially reasonable efforts to test the Website, the App or the Interactive Media and to make all necessary corrections prior to the completion of the Service. The Client, within five (5) business days of notification by the Supplier that the Website, the App or the Interactive Media is ready for testing, shall notify the Supplier, in writing, of any failure of the Website, the App or the Interactive Media to comply with the specifications set forth in the Proposal, or of any other reasonable objections, corrections, changes or amendments the Client wishes to be made. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and the Supplier will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the Terms and Conditions of this Agreement. In the absence of such notice from the Client, the Service shall be deemed accepted.
Except in respect of death or personal injury caused by the Supplier’s negligence, the Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of this contract, be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) in connection with the performance of this contract or with the use by the Client of the Services supplied.
The Client shall indemnify the Supplier against all damages, costs, claims and expenses suffered by the Supplier arising from loss or damage to any equipment (including that of third parties) caused by the Client, or its agent or employees.
The Supplier shall not be liable to the Client or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
The liability of the Supplier under the Agreement or in tort (other than in respect of death or personal injury) shall not exceed the greater of the sum paid by the Client under this Agreement or such sum as shall be receivable by the Supplier in respect to any claim under any insurance policy effected by the Supplier. The Supplier shall not be liable for any indirect or consequential loss or any loss of profit, reputation, or opportunity.
Where the Client consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Client shall be joint and several obligations of such persons.
13. Force Majeure
Neither the Supplier nor the Client shall be liable to the other or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Services, if the delay or failure was due to any cause beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:-
act of God, explosion, flood, tempest, fire or accident;
war or threat of war, sabotage, insurrection, civil disturbance or requisition;
acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
import or export regulations or embargoes;
strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of either the Supplier or the Client or of a third party);
difficulties in obtaining raw materials, labour, fuel, part or machinery;
power failure or breakdown in machinery.
No waiver by the Supplier of any breach of these terms and conditions by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of any term, provision or condition of this Agreement shall be effective only if given in writing and signed by the waiving party and then only in the instance and for the purpose for which the waiver is given.
No failure or delay on the part of any party in exercising any right, power or privilege under this Agreement shall operate as a waiver of, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise of or the exercise of any other right, power or privilege.
If any provision of these terms and conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these terms and conditions and the remainder of the provision in question shall not be affected thereby.
Each party will use its best endeavours to preserve the confidential information of the other and will comply with the other’s reasonable requirements in this regard. The Client recognises that the Supplier’s method of working and pricing structures are proprietary and are not generally in the public domain.
17. Notices & Services of Documents
Any notice or other information required or authorised by this Agreement to be given by either party to the other shall be given by sending via pre-paid registered post, email, facsimile transmission or other comparable means of communication.
Any notice or information given by post in the manner provided by Clause 17.i which is not returned to the sender as undelivered shall be deemed to have been given on the third day after the envelope containing it was so posted; and proof that the envelope containing any such notice or information was properly addressed, pre-paid, registered and posted, and that it has not been so returned to the sender, shall be sufficient evidence that the notice or information has been duly given.
Any notice or information sent by e-mail, telex, cable, facsimile transmission or comparable means of communication shall be deemed to have been duly given on the date of transmission, provided that a confirming copy of it is sent to the other party 24 hours after transmission.
Service of any document for the purposes of any legal proceedings concerning or arising out of this Agreement shall be effected by either party by causing such document to be delivered to the other party at its registered or principal office, or to such other address as may be notified to one party by the other party in writing from time to time
18. Applicable Law & Jurisdiction
These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein.