Master Service Agreement:
This whole agreement and all its service terms stay valid for all future work requests of any types, after the delivery and completion of the project, this document does not expire and serves as the master service agreement for all our interactions afterward for all your brands, companies, company division or any other organisation on behalf of which you may place an order.
- Developer’s main responsibility:
- Is to perform professional work,
- And respect the delays set in the SLA (Service Level Agreement) published here: https://magemontreal.com/sla
- The client’s main responsibility:
- Is to be available for meetings or information requests,
- To respect the workflow of the developer (or accept the extra fees).
- To keep the timebank with the necessary pre-paid work hours credit.
- SUPPORT WORK v.s. PROJECTS WORK:
- Support work and Project work are performed, most of the time, by different teams / team members.
- We consider any tasks that can be completed in
less than half a day of work (4 hours), on an existing live website, to be support & maintenance work.
- Any tasks requiring more than half a day of work, or that represent building a new website are considered to be a PROJECT and will be scoped, planned, will have a longer turn around time, will be treated differently & managed by a different PROJECT workflow.Timeline: Any production timeline mentioned at any time is always conditional to receiving on time all the required information from the client: all applicable texts, photos, products, logos and all other terms mentioned. Please note: your project’s timeline and delivery date are reserved/locked in our calendar only once the first payment/deposit is received.SUPPORT WORK (After the go-live of a project):
- All work requests will be sent to us by using the support ticket system, or by emailing new requests to [email protected], which will automatically create a support request for you with a tracking number so no requests are lost.
- When this workflow is not respected, we charge the administration work time needed to recopy your requests in the support system.
- All work timebanks are always prepaid before the work is done.
- If the timebank is out of credit, we notify you in advance and automatically refill it with another 8 hours work credit, unless you tell us in writing to not do so.
- If the timebank is out of credit and cannot be renewed the work stops.
- We do generate and send you an invoice/receipt at each timebank renewal.
- Any larger request will be transformed from a support request into a project request, then an estimate of any “add-work”/”out of scope work” has to be approved by the client before Developer works on it.
- Pre-approval of work time:
When we receive any requests from you, written or by phone, in a spirit of offering you a great service and finding solutions to your needs, you pre-approve a budget of up to 3 hours of billable work to do whatever is needed to fulfill your request.
- For any tasks or requests which needs more than 3 hours of work, we will inform you of an approximate amount of time needed to fulfill your request, for you to validate if this requests is worth the investment for you of more than 3 hours of billable work. We will only proceed with your approval via the ticket system or via email sent to [email protected]
- Support plans work on a time & material business model, all work time requested is billable. (Note: We often make small exceptions and write off a short 5 minutes call to favor good communications, but all tasks, researches, tests, R&D, administration, management, etc are all billable tasks.)After sales/support work might not always work in the agile/sprint approach for small requests, but all business terms stay the same.
PROJECT WORK – Website Agreement
This Website Support & Consulting Agreement (the “Agreement”) is made and entered on DATE________________ by and between CLIENT_COMPANY_NAME_________________ (“Client”), hereby represented by CLIENT_NAME_________________, duly authorized as s/he so declares and MageMontreal (“Developer”) hereby represented by NAME_________________, duly authorized as he so declares (Client and Developer, referred to as the “Party(ies)”).The Parties agree as follows:
Table of contents:
- Fees and Payment Schedule
- Support Execution and Delivery
- Web Hosting
- Independent Contractor
- Intellectual Property and Ownership of Materials
- Client Representations
- Term and termination
- Return of Property
- Developer’s Warranty and Limitation of Liability
- Binding Effect
- Cumulative Rights
- Entire Agreement
- Selected Language
- Governing Law
- Requested Services: Client shall engage Developer for the specific tasks of support, updates, consulting, designing, developing and/or improving the Client”s website (the “Website”). Such services to be described in greater detail in Schedule “A” (the “Requested Services”).
- Service Level Options: Client will be required to choose between several service-level options which set out the speed of service for all new requests for Services once the Website is delivered. These options are more fully set out in Schedule “B” (the “Service Level Options“).
2. FEES AND PAYMENT SCHEDULE:
- All work is always prepaid. If the time bank is out of credit, the work stops. The client cannot claim any kind of prejudice or damage of any kind, direct or indirect if the work is stopped for none-payment or the timebank being out of credit.
Estimated work time: Due to the nature of “estimates” all quotes in Schedule “A” are approximation of how much work time will be required, the work is always performed at an hourly rate and not a flat rate, therefore the final billed time is adjusted and we bills exactly how much time the employees logged into this task by slices of 15 minutes.This means we will also sometimes bill you less than the estimate, the risk is shared so we do not have to quote additional security buffers and additional warranty costs : its win-win! This generally lowers your total cost.
- Variation limits: we always try to stay as reasonably close as possible to the approved estimate to complete a task, a module or a sprint, and we do not go over by more than either 2 hours or 30%, whichever is greater: (the “variation limit”) for any tasks, module, or sprints.
- The true goal of our collaboration is for us to solve for you a specific business problem defined as a “user story” (which is a high-level summary in the client’s words) for what has to be achieved. Therefore we focus on reaching the goal of solving your business problem/completing the general required functionality this system or issues require. Therefore the exact work time and billing can vary from the rough estimate.
- If ever the employee needs to exceed or foresees he might exceed the estimate by more than the above variation limit to finish the task, the employee will stop working immediately and will inform you in writing of the situation or of new unexpected issues affecting the work scope, before any more work is performed. In this case, we will wait for your written approval of the change in planned scope and approval of more work time before any other work is performed. For further clarity, unless explicitly written by us in the task description as a “flat rate job” all tasks estimates are always slightly flexible and billed as hourly jobs within the variation limit above, and the variation limit is applicable to the Schedule “A” pricing regardless if it is quoted as a single price or as a price range.
- For something as large as the budget of a 1 to 4 weeks sprint, we are usually able to foresee if we will be within the expected budget or not, and will communicate with you in writing if possible before exceeding the initially forecasted budget for that sprint. Developer is not allowed to bill more than 30% over the estimated sprint cost without written approval of the client for the scope increase vs the initially planned scope. If scope increase cannot be resolved between the client and developer, development stops until resolved or ends the projects with only the cancellation cost as described in point 10 below.
- The spirit of the Agile development is a close regular collaboration between the developer and the client at each sprint. At the end of each sprint, the developer will do a demo of the work delivery and the client has the responsibility to be available or to pre-schedule a delivery meeting with the development team, in order to move to the next sprint.
- Fair usage. Everything is subject to a fair usage policy, including but not limited to all products, services, project, quotes, estimates, requests, hosting usage, etc. This is meant especially for cases where no clear limits of deliverables, numbers of deliverables or numbers of rounds of revisions were set, but not limited to those scenarios, the developer can at any time set limits at its entire discretion and exclusive judgment as to a fair usage of the developer’s time, company resources, hosting capacity or other resources; requiring that further design or development changes or revisions or hosting capacity or other requirements or situations would require additional budget.
- The Services will only be commenced by Developer once the applicable payments above-mentioned have been made.
Other payment terms:
- This agreement & support services will start at the date of signature and payment of this agreement unless mentioned otherwise.
- Installment payments are due upon receipt of the invoice and will be debited from the credit card or paid by the client by any electronic transfers. For further clarity, payment milestones are NOT owed NET 30 days but upon receipt.
- Retainer style workflow (If applicable) :
It is understood that the developer will reserve time each week for the continuous progress of the development of this website until it is complete, and for this reason will turn down other potential business deals and potential sales the developers receive:Therefore the client has the responsibility in this collaborative workflow to provide any missing information or to review the developer’s work in a delivery meeting in a reasonably short time-frame to not block to the progress of the development team.
- I) If Client does not provide Developer with the required or requested information, content, or feedback, approval or disapproval, or does not allow the team to have a delivery for ten (10) days outside of public holidays past the scheduled completion date of the sprint:
We will automatically close the support request ticket, or in a case of a project, we will put the project on hold.ii) If any request goes on hold, either support requests or projects, new production dates will have to be agreed on as developer will move on to serve other customer and your priority in the monthly project pipeline is lost and will be rescheduled as per the availability and at the sole discretion of the developer.iii) If a project goes on hold a 5% or 500$ fee (whichever is less) will be billed to the client and the fee is due immediately. Developer will give 1 written warning by email before a project goes on hold and will give 5 additional business days to the client to provide all required information, data, content, texts, payment or any other needed elements of any type to unstuck the project and correct the situation.iv) There are no fees to resume a project which has been put on hold.v) if the hold period was of 6 months or longer, prices could be renegotiated or updated to reflect any new yearly price increase for those products, services, or agreed on hourly rate or developer might totally void the project and not accept to continue working on it, at the sole discretion of the developer and no damage or prejudice of any kind can be claimed by the client, who neglected his project for 6 months or more.
- Late payments are subject to interest payments and applicable penalties as set out in the invoice for Services.
- TIMELINE DETAILS: Please note: your project’s timeline and scheduling is reserved/locked/confirmed in our calendar only once the first payment/deposit is received.
- Recurring Billing : If applicable and specifically for agreed recurring monthly and yearly fees such as maintenance plans, monthly web marketing plans, monthly internet advertising, web hosting, domain name renewal, and all other recurring bills, a separate recurring billing agreement (the “Recurring Billing Agreement”) will be signed in annex for automatic monthly or yearly recurring charges. The invoice for the recurring charge will be sent many days ahead of the renewal date as per the terms stated in the recurring billing agreement.
- Credit card payments and chargebacks: for any invoices paid via credit card, the client has 30 days to inform the developer of any error in the billing or credit card charges, no requests of refunds or chargeback can be done after 30 days. After the 30 days, if a refund would indeed be due for any reasons it would be handled outside the chargeback system of the credit card companies as a credit note for future purchases.
Chargeback: before requesting any chargeback via the credit card company, the client must contact the developer in writing and give a reasonable delay of 10 days to review the request. Furthermore, the client must make himself available to discuss the request with the developer before requesting any chargeback with the credit card companies.
3. SUPPORT EXECUTION AND DELIVERY:
- “Completion of the Services” means the completion by Developer of Services and shall occur upon the earlier of: i) Client’s final approval that the Website go “live”, meaning making the website publicly accessible on the internet via any domain name, or ii) five (5) business days after the Website has been approved to go live. For further clarity, the Website will only go live once the Sign-off Form provided by the Developer is signed by the Client.
- The development work is done on the development servers of the developer. Any work done on a client’s server is always prepaid. If the client requests to migrate the work or project to any server other than the developer’s server, the full payment of all bills due up to date and the full payment of the project is
- Any requests to rush the go “live” for any reasons whatsoever, or to migrate to another server, even if the work is not entirely done yet for any reasons whatsoever, then the full payment of all outstanding bills is still needed before the transfer or the go live.
- Developer will take all reasonable actions to complete the Services within any timeline mentioned. However, Client acknowledges that delays in Developer receiving materials, information and work review from Client or a third Party or any case of force majeure, including but not limited to downtime by either Party’s hosting service, may slow Completion of the Services, with no responsibility for damages on the part of Developer.
- New requests for Services, other than what is set out herein, including but not limited to requests for extra modules or modifications, will always be scheduled for production after Completion of the Services, unless there are extra programmers available to do the additional work, at the sole discretion of the Developer, and as per production schedule availability.
- One piece flow as a preferred production method.
One piece flow is the recommended production method in the Agile methodology and it is embraced as well by Toyota in the LEAN production system.
This simply means that when something starts; we finish it.
THEN we start something else.
If the client requests to stop working on an already approved and already started work order; please note that there will be an additional charge of at least 1 hour, at the agreed hourly rate of the project, to the billing over the quoted and approved work hours for each service quote that is interrupted in it’s production flow. This is to cover for lost efficiency of stopping the ongoing work and the time needed for preparation and the switch of tasks priorities, then to re-setup the work for the initial work order. This is also applicable for work orders which are approved and started, then put on hold, then resumed later.
- Approval to go “live”. a) the Developer will typically present a copy of the work or the changes on a development copy of the site, which can be reviewed by the client before the work is published on the “live” version of the site. This is most typically used workflow, unless from a request of the client or that a special technical situation or urgency of the request made it necessary to work directly on the live version.
b) the Developer will make a reasonable verification of the work and quality control, but the client also has the responsibility to review the work presented, and an approval to go “live” from the client means that the work meets the client’s expectation and standard of quality. Any issues reported after the approval or after going live will be handled with the warranty clause #12 below.
4. WEB HOSTING:
- If hosting is not provided by the Developer, the Client hereby authorizes Developer to access the Website’s hosting account.
- If hosting is provided by the Developer, then all hosting terms as published on our website https://magemontreal.com/hosting-agreement are automatically accepted by the client the moment he accepts to host his website on the Developer’s server.
This is the same hosting agreement for all clients unless a specific different hosting agreement is signed.
- If your website is compromised in any way (malware, hackers, fishing or spoofing or spamming or has a virus, has illegal activities or other valid similar compromises).
i) The client has the responsibility to get the situation resolved and remove the virus or other forms of compromise, the Developer will not accept a site to be compromised and online on its servers.
ii) the Developer is authorized to suspend immediately the website and put it offline, to notify the without prejudice of any kind or claims of lost sales or any other direct or indirect claims of any kinds. The client will be notified in writing that his site is suspended.
iii) The client pre-authorizes billable extra labour of up to 4 hours of work for the Developer to start an intervention immediately.
iv) Developer will provide a quote to resolve the problem fully if the 4 hours of labour were not enough, but the client can decline the add-work quote and simply request to be provided with a backup of all his files and belonging and the issue could be resolved by another provider than the Developer. The site will nevertheless stay offline until it not compromised anymore and is totally free of virus/hacks/etc.
- Client agrees to reimburse Developer for all reasonable or pre-approved expenses by Client and incurred in connection with this Agreement (the “Expenses”) including, but not limited to, special graphics, special photography, special video, special software, special plugin, special theme, special template, special licenses, special fonts, etc
- For the approved expenses made by Developer, payment terms for the invoice sent to the client will be “due upon receipt” and a 10$ or 10% administration fee whichever is greater, will be added to the expenses amount. If the client wants to avoid this administration fee he can buy the special material directly and provide it to Developer, or Client can ( if applicable) have his credit card directly on file with the special material seller, avoiding the need for Developer to have any “approved expenses reimbursement bill”.
6. INDEPENDENT CONTRACTOR:
Developer is an independent contractor and NOT an employee of the Client and is not entitled to any of the benefits normally provided to the employees of Client.
Each Party acknowledges that he/she/it may have access to the confidential and proprietary information that the disclosing Party may designate as such. Such confidential information may include, without limitation:
- i) business and financial information
- ii) business methods and practices
- iii) technologies and technological strategies
- iv) marketing strategies
- v) other such information (“Confidential Information“).
Receiving Party agrees to not disclose to any other person or use for personal gain any Confidential Information at any time during or after the term of this Agreement, unless disclosing Party grants express, written consent of such a disclosure. Confidential Information will not include information that is required by law, in the public domain, unless such information falls into the public domain through Developer’s unauthorized actions or that can be independently produced or reverse engineered by receiving Party without having access to the Confidential Information.
8. INTELLECTUAL PROPERTY AND OWNERSHIP OF MATERIALS:
- Prior Intellectual Property Rights: Notwithstanding anything else in this Agreement, all intellectual property which one of the Parties has at its disposal prior to this Agreement shall remain the sole and exclusive property of such party and shall remain confidential. Intellectual property shall include but not be limited to source codes, plans, drawings, concepts, branding materials, domain names, inventions, studies or prototypes. For example, the Developer retains the ownership of its source code and the Client retains ownership of its brand, logo, images, branding material and domain name. The Client shall have the right to use the source code by way of a license provided to it by the Developer and more fully described below.
- Prepared Materials: In addition to the above, upon full payment of the Services, the Client shall become the exclusive owner of all rights, intellectual property and interest in or relating to all materials, including but not limited to webpages, domain names, texts, drawings, icons, images, pictures, charts and custom graphics, branding prepared by Developer for Client (the “Prepared Materials”). Effective at such time, Developer hereby waives all moral rights to the Prepared Materials and assigns and transfers any and all rights, title and interest that it may have in the Prepared Materials, including any rights under copyright law, to Client.
- Developer Materials: The Prepared Materials do NOT include the following, as they remain the Developer’s materials (the “Developer Materials”): (i) the source code relating to the Web Site, and all specifications and documentation relating thereto, and all developments, updates and upgrades thereof as well as (ii) any items or materials that pre-existed this Agreement, that are not specifically designated as Prepared Materials or that are required software components (including but not limited to, scripts, applets, applications, programs, executable files, software, search engines, database management engines and multimedia components).
- License: For the effective use of the Prepared Materials, upon full payment of the Services, Developer hereby gives Client a non-exclusive, worldwide, unlimited, irrevocable, royalty-free license to use, execute, display or perform any Developer Materials included or contained in the Prepared Materials.
- Each party acknowledges and agrees that Developer may include the Website, the webpages or any of the other Prepared Materials in Developer’s portfolio, including a display on Developer’s website.
9. CLIENT REPRESENTATIONS:
Client represents and warrants:
- a. That it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;
- b. That it will provide information requested by Developer in a timely manner;c. that the text, graphics, and photographs provided to Developer for the Website are owned or licensed by Client, and that Client is authorized to use and display such items in the manner contemplated by this Agreement. Client shall be solely responsible for the Website and materials on the Website and the validity of copyrights, trademarks and ownership claimed by Client. Client agrees to indemnify and hold Developer harmless from and against any claim, loss, damage, expense or liability (including attorney’s fees and costs) that may result in whole or in part, from:
- i) any infringement or any claim of infringement, of any trademark, copyright, trade secret, or negligence arising from any of the text, graphics, and photographs provided by Client
- ii) any claim by a third Party regarding any services or products sold or otherwise distributed by Client, its employees or agents, or iii) any claim, suit, penalty, tax or tariff arising from Client’s use of the internet or electronic commerce; and that it will assume all responsibility for the protection of the security of its passwords, including but not limited to for ftp logins, Cpanel logins, admin panel login, email logins or otherwise provided to Client in relation to the Services.
- c. The client certifies that he did not modify or alter in any way this original agreement copy sent by the developer. The client may not add or remove clauses, pages, strikeout sections or do any changes of any kind to the original contract by the developer. i) If the client wishes for any changes to be done to this agreement, he should submit them to the developer who will produce a new original copy as per the newly agreed terms. I) If the client does any changes to the document despite this clause and signs an unauthorized modified copy, the original copy sent by email by the developer with all its clauses intact will remain the full and valid contract terms.
- d. Developer makes no guarantees of volumes of sales, of increases in sales, of commercial profitability or any other form of business success for any e-commerce project, services or any other projects of any kind. The client, as the entrepreneur and owner of the project, is solely responsible for the commercial profitability or success of his project. The client cannot make any claims of lost sales, lost profits, or any other kind of direct or indirect loss, damage, expense or liability (including attorney’s fees and costs) including but not limited to claims related to the commercial success or other forms of success or timeline of the execution of the project.
10. TERM AND TERMINATION:
This Agreement shall terminate at the Completion of the Services. Notwithstanding the termination of this Agreement for any reason, the provisions of Sections 7, 8 and 9 of this Agreement will continue in full force and effect following such termination.
Subject to subsection:
- (a) Client may terminate this Agreement, at any time for any reason, subject to the following conditions:
- i. It shall be done in writing;
- ii. Immediate payment of any work hours performed even if some tasks are incomplete at time of cancellation, as well as immediate compensation of Expenses to date
- iii. there is no cancellation or termination fees but developer will not offer any refund of any timebanks credit left in case of termination as compensation of accepting to service a limited amount of clients at the same time with it’s workforce; and
- iii. Signature of a full release by Client of any liabilities in relation to the Services or the Developer. In case of such cancellation by Client, the terms of this clause apply and supersede articles 2125 and 2129 of the C.C.Q.
Subject to subsection
- (a), Developer shall have the right to terminate this Agreement in case Client is in breach of any obligation under this Agreement, including but not limited to late payments of amounts owed. Client shall be given a ten (10) days written notice to cure such default after which Developer shall have the right, at his sole discretion, to terminate this Agreement and Client shall be responsible to pay Developer the entire amount of the Agreement as if such termination had not occurred.
11. RETURN OF PROPERTY:
Upon termination of the Services, if requested in writing each Party will promptly return to the other all drawings, documents and other tangible manifestations of the Confidential Information owned by the latter (and all copies and reproductions thereof).
12. DEVELOPER’S WARRANTY AND LIMITATION OF LIABILITY:
- Developer warrants that the Services will be performed in a workmanlike manner and in conformity with generally prevailing industry standards, unless expressly agreed to otherwise between the Parties. Client must report any deficiencies to the Developer within five (5) business days of the delivery. If no deficiency report is made within such time period, Client will be deemed to have accepted the work. If there are bugs or issues, all work is billable work time, and we will fix.
- If any bug is found on the website or in relation to the Service after publishing the work/putting the website live, Developer will address the issue free of charge. It is understood that any work required, for any reason, by Developer reported after such thirty (30) days are billable updates, debugging or changes.
- In the Agile workflow style, a bug fix is a normal task to do at the next sprint like any other task and uses the normal sprint budget. The above 30 days free bug fix warranty only starts to be applicable after the date at which the project is considered completed and the work is published live/publicly online.
- Definition: A bug is defined as something broken such as receiving an error message after clicking something. The bug warranty does not cover any change requests or updates of any kind, it only covers to fix for free broken features or error messages.
- Fair usage: clarification of a “gray zone” about bugs: i) the bug warranty is not a way to get free development of new features for scenario not clearly covered in the requirements, it does not give any free “implied” feature development work by claiming a missing functionality or a missing behaviour to be “mislabelled” as a “bug”.
ii) If the website does not have feature XYZ or does not do XYZ when clicking a button, it could, but does not necessarily constitute a bug. Let’s take the following example, a client saying there is a bug: “when an order is cancelled, a credit note should automatically be generated for the client. The site currently does not do that, please fix that bug for free.”
The above is a feature request and not a bug if it was not written clearly in the requirements, or even if listed in the initial list of desired features if that feature was never approved for production in a sprint approval it was just not part of the project’s final set of features, or if it was not built by the developer in any sprints in Agile production style, then that automatic credit note feature is simply not part of the project. It’s, therefore, a functionality to build, which a programmer will have to program in the website; it’s a billable extra feature which can be developed for a fee on request.
iii) For the above example to be considered as a bug eligible for a free fix, here is what is required: if the above “credit note” feature was not only discussed, but also approved for production, was built by us, but on click, it either does not work or gives an error message. Then yes it will be covered for a free fix by our bug warranty.
- All reported bugs reported for a free fix will be rated by the Developer at its sole discretion, either as having an importance of either: ‘Critical’, “Major”, “Medium”, “Minor”, “Trivial”.
- All bugs reported will be addressed, nevertheless, there is a limitation for minor or trivial bugs: the Developer will do a maximum of half a day of work (4hours) to try to fix a single minor or trivial bug at no cost. While this will typically be enough, if more work is needed for minor or trivial bugs, we will either quote the balance as a billable extra or it will be decided to ignore it and reported as such.
An example of a minor/trivial bug is if a button is 2 pixels / 2 millimetres off from the desired alignment on the display but still works as expected on click.
- Developer warrants that the Services will not infringe any copyright, patent, trade secret, or other proprietary rights, or any contractual right or obligation known to the Developer.
- Developer”s warranty only applies to services it provides and does not cover situations where a third party (ex: another web development company) has also worked on the Website. Developer”s warranty shall also be inapplicable in case of improper use by the Client or third party, in case of any computer or other systems “viruses”, trojans, bugs, hacking or other security breaches, Website downtime, email downtime or in case any external programs or software used by Client affect the normal use of the Services.
- THE DEVELOPER EXPRESSLY DISCLAIMS ALL WARRANTIES OTHER THAN WHAT IS EXPRESSLY SET OUT IN THIS AGREEMENT. DEVELOPER”S WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO PROJECTED PROFITABILITY FROM THE WEBSITE OR THE SERVICES RENDERED BY THE DEVELOPER, AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT.
Limitation of liability.
- IN NO EVENT SHALL DEVELOPER BE LIABLE FOR ANY DIRECT OR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, OR DATA INCURRED BY CLIENT OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- TO THE EXTENT LEGALLY PERMISSIBLE, DEVELOPER SHALL NOT BE HELD LIABLE FOR MONETARY DAMAGES FOR ANY CAUSE, WHETHER IN CONTRACT, TORT OR EQUITY, INCLUDING ANY FORM OF BREACH, NEGLIGENCE OR OMISSION. CLIENT’S ONLY RECOURSE AGAINST DEVELOPER SHALL BE THE RIGHT TO REQUEST THE RE-PERFORMANCE OF THE SERVICES AS SOON AS REASONABLY POSSIBLE THAT WERE NOT COMPLETED AS PER THE SPECIFICATIONS IN SCHEDULE “A” or “C” (if schedule “C” was used.).Indemnification.Notwithstanding the rest of this section 12, each Party will defend the other against any third party claim due to its gross negligence or gross omission under this Agreement, provided such indemnifying Party is notified promptly of the claim and is given authority to handle the defense itself, if it so decides. Such indemnification shall include all costs, supported by receipts, reasonable legal fees in addition to any damages and applicable interest awarded by court judgment.
13. BINDING EFFECT:
- The covenants and conditions contained in the Agreement shall apply to and bind the Parties and the heirs, legal representatives, successors and permitted assigns of the Parties.
14. CUMULATIVE RIGHTS:
- The Parties” rights under this Agreement are cumulative, and shall not be construed as exclusive of each other unless otherwise required by law.
- The failure of either Party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that Party”s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
- If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
17. ENTIRE AGREEMENT:
- This Agreement, including its Schedules, constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be modified in writing and must be signed by both Client and Developer.
- For further clarity, all the work, features and functionalities that must be delivered are explicitly listed in this Agreement; there are no unstated or assumed deliverables other than what is explicitly listed herein.
18. SELECTED LANGUAGE:
- Both parties have requested or agreed for this agreement to be written in English.(French translation: Les deux parties ont demandé ou accepté que ce document soit rédigé en anglais.
- Any notice required or otherwise given pursuant to this Agreement shall be in writing, including by email, with confirmation of receipt, and addressed as follows:
Client: #CLIENT_NAME___________________#, #CLIENT_EMAIL___________________
Developer: #NAME___________________#, #EMAIL___________________
Either Party may change such addresses from time to time by providing written notice to the other Party as set forth above.
20. GOVERNING LAW:
- This Agreement shall be governed by and construed in accordance with the laws of the province of Quebec and be subject to the jurisdiction of the courts of Montreal, Quebec. This quote is valid for 60 days from the date it was sent to the Client. Once accepted by Client, it will constitute a valid and binding Website Development Agreement between the Parties.