By using the Site, Service, or by directing us to perform work on Your behalf, You agree to these terms.
Last Updated: JULY 1, 2014
THIS IS THE BITCREATIVE INC. SOFTWARE STANDARD TERMS AND CONDITIONS (“CONDITIONS”), WHICH GOVERNS YOUR PURCHASE AND USE OF THE SOFTWARE DEVELOPMENT SERVICES PROVIDED BY BIT CREATIVE INC. AND OTHERS.
BY EXECUTING AN ORDER FORM, ESTIMATE, ENGAGEMENT LETTER, QUOTE OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. THESE TERMS COVER IMPORTANT ISSUES THAT MAY SIGNIFICANTLY INCREASE YOUR COSTS, RISK, AND SCHEDULE. YOU SHOULD READ THEM CAREFULLY BEFORE ACCEPTING AN ENGAGEMENT WITH US.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”, “YOUR”, “COMPANY”, OR “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT REQUEST ANY SOFTWARE SERVICES BE DEVELOPED FOR YOU.
Definitions
“Company”, “You”, “Your”, “Customer”, “Client” means i) the legal entity listed on an Order, and/or ii) the authorized signatory of that entity, iii) a natural person who signs the document or electronically accepts these terms, iv) jointly and severally.
“Consultant”, “Contractor”, “Service Provider”, “BitCreative Inc.”, “Us”, “Our”, “Bit”, “BitCreative”, and “We” means your local Bit Creative affiliated company or franchise, as indicated on the Pricing and Schedule Page of this proposal.
“Parties” means (i) Us and You together, (ii) as set forth in the SOW, Order, Quote, Engagement Letter or Estimate, (iii) jointly and severally.
“Statement of Work”, “SOW”, “Quote”, “Engagement Letter”, and “Estimate” means (i) a written document or verbal discussion confirmed by an entry in our JIRA project management system, (ii) that sets out the Services to be performed, and (iii) the price to be paid for it.
“Estimate” also means We have issued a rough, general estimate without significant estimation, time, or review. Such projects will be administered as per section (h) below.
“Quote” also means a firm price commitment from the Company that the produced software service shall not exceed the price shown on the Quote, unless mutually agreed expansion occur as defined below. Where software used by the Consultant uses the word Quote, but the text described with the document says it is an Estimate, then the Parties agree that they shall proceed as if the document were an Estimate.
“Order”, and “Orders” means (i) the agreed ordering document for the purchase of the Services or a verbal direction from the Company that is documented on our JIRA project management system, (ii) that is subject to this Agreement, and (iii) that identifies the particulars of the purchase and fees to be paid. Where no price is defined, Consultant’s standard rate of $125 per hour will apply.
“Story”, and “Stories” means (i) a user described feature entered on our project management system JIRA, (ii) that roughly describes a feature that is to be implemented, and (iii) is placed on the product backlog.
“Sprint”, and “Sprints” means (i) a collection of user stories, (ii) organized into a prioritized list by the any Party, (iii) that defines the Services We are to provide.
“Service” or “Services” mean (i) work completed by the Consultant, (ii) in accordance with Your directives, and (iii) billed at a rate agreed to in Your Order.
“Site” means (i) data in any form, (ii) or any hosted and/or controlled by the Consultant, (iii) or hosted on Basecamp.com, (iv) or on our Billing System, and (iv) or on JIRA.
Background
The Company requires the Services of Consultant with respect to certain consulting and other tasks, and Consultant has expertise in the area of Services, including but not limited to software development, information technology integration, web services, cloud computing, required by the Company and is willing to provide such Services.
This Master Services Agreement, also referred to as the Standard Terms and Conditions, sets forth the conditions whereby Consultant agrees to provide Services to the Company according to the terms and conditions hereinafter provided. Each individual project assignment under this Agreement will be defined on a Scrum based project management system.
Every 2 weeks, or on a cycle mutually agreed to by the Parties, the Consultant and Company will update the Agile Board with a collection of Stories collected from the Company. The Stories shall be organized into a Sprint that typically lasts for 2 weeks, the end result of which is a potentially shippable product. You specifically acknowledge that the Scrum framework is employed to provide the maximum flexibility to You, and that the Consultant provides Services to you in each Sprint governed by the Standard Terms and Conditions of this Agreement. These terms shall constitute and be construed as the entire Agreement between us. The Consultant’s Standard Term and Conditions replace any and all previous agreements and is the only Agreement that governs our Services to you.
The Consultant may also provide Services to the Company on an hourly basis for needs that may not require a project structure defined by an Order, or Estimate. The Company may hire Consultant for such Services at Consultant’s predefined hourly rate of $125 per hour where no rate is indicated. In the case that a different rate is indicated, the rate on the Order, Quote, or Estimate shall prevail.
1. Scope of Work
(a) Orders to be Executed Verbally During Sprint Planning
The Consultant, using the Scrum Framework, provides project management services to the Company. Each Order may specify, if applicable, the Project Managers, Consultant staff assigned, type of work, skill levels provided, location and approximate length of Order assignment, hourly rates or other economic terms that apply, deliverables and their due dates, and completion criteria for successful completion of the Services. Additional written and detailed technical specifications for the Services may be attached to a Story entered on our JIRA Project Management System (“JIRA”).
(b) Work Space and Materials
If required and unless otherwise set forth in an Order, Company agrees to provide reasonable workspace, general office supplies, and appropriate computer time for Consultant’s personnel while working on Company’s facilities. Any additional or unusual materials needed by Consultant’s personnel in connection with the performance of Services hereunder shall be provided by Consultant or as otherwise specified in the corresponding Order.
(c) Highest Professional Standards
Consultant and Consultant’s personnel shall perform the Services set forth in each Order using only the highest professional standards while maintaining full compliance with Company’s technical and security standards and procedures.
(d) Change Control
During the course of Consultant’s performance of Services, Company may desire a change in the scope of the Services. Company’s requests for changes shall be made in writing or verbally and delivered to the Consultant’s internal Product Owner. Both Parties will review the proposed change and determine the effect that the implementation of the change will have on price, schedule, and other terms and conditions of the Order in question. Upon completion of the review, any changes in price, schedule, or other terms will be documented, as the Parties select, either by an amendment to or a sequentially numbered replacement of the Order in question. Each new order will be placed within the Sprint on the Agile Board. In absence of a written agreement, the Estimate, or Quote shall prevail on all matters, which include, but are not limited to Scope, price, schedule and other terms. Charge requests that have not been specifically quoted on a flat rate quote will be billed at Consultant’s currently published rates, or at $125 per hour, whichever is less.
(e) Acceptance
Acceptance will occur when the Deliverables in an Order meet the agreed upon tests or the acceptance criteria as described in the Order, if any, or as otherwise provided in an Order. If the Deliverables do not meet any applicable acceptance criteria as outlined in the Order when offered by Consultant for Company’s acceptance, Company will give Consultant detailed written notification of the deficiency or non-conformance within 15 days of receipt of any Work Product. The Consultant then shall, within thirty (30) days of receipt of such written notification, either correct the deficiency or non-conformance or provide Company with a plan acceptable to Company for correcting the deficiency or non-conformance. If the deficiency or non-conformance is not corrected or if an acceptable plan for correcting such deficiency or nonconformance is not established during such period, then, upon demand by Company, Consultant shall refund to Company up to ten percent of the total fees to be paid by Company relating to Services performed under such Order and the Company may retain the work product to date.
(f) Schedule
The project schedule, deliverables, milestones, and all other methods We use for measuring the progress of a project are to be used for reference purposes only. The Parties acknowledge the dynamic nature of computer software and further acknowledge that the challenges it presents specifically preclude the ability to guarantee delivery at any time. The Parties agree that the quality of the product is the most important element to any development and that the schedule shall be adjusted accordingly, at the sole discretion of the Project Manager, to conform to the highest standard of delivery. The Company specifically agrees not to rely on any deliverable date for any purpose whatsoever and specifically acknowledges that the schedule will likely change as the project evolves and unknowns become known. No Party shall be liable to the other for a delay in schedule, expect as outlined in the Order as it relates to the Company’s potential to become non-responsive to the Consultant’s requests for information, in which case, the Consultant may, at it’s option, issue a termination notice as described herein.
(g) Scope Control and User Requirement Production Service
The Company acknowledges that the Consultant offers a service sometimes referred to as the User Requirement Production Service (the “URD Service”). The URD service is designed for customers that do not have a clear vision of their application, are not able to list every feature required in development, and to assist in freezing the cost associated with each job. The Consultant is under no obligation to offer to produce a UR Service document and may refuse to do so and require a Company to be billed as defined in subsection (h) below. A UR Service document shall freeze the costs associated with an Order and a firm quote shall be delivered from the Estimate provided by the UR Service, which shall be the total cost due for the duration to deliver the entire project, and is not subject to the additional costs defined below in subsection (h).
(h) Consultant Informal Process, Risk, and Additional Costs
If the Company chooses to continue without a URD Service being produced for their project, they do so at their own and substantial risk. Such projects shall be referred to as the “AGILE Informal Process” and will be estimated on an hourly basis only. Estimates provided in the informal process are subject to change, modification, and hourly increases, depending on actual hours worked by Consultant members. The Consultant may, at it’s option, bill, rebill, or backbill any of these charges, regardless of when they occurred, and demand full and complete payment for the actual hours worked on any job, at any time. The Consultant may also, at it’s option, choose to absorb any additional billing and not bill the Company. Many dynamic factors will be evaluated in this calculation and the Consultant may, at any time, send the Company a Notice of Intention to Rebill or Backbill to advise of these charges and any anticipated known or unknown to the Consultant. The Company can easily avoid these charges by having a UR Service produced. The Company acknowledges that it faces significant risk of cost increase should a UR Document not be produced.
(i) Excessive Changes, Change Detail, Scope Creep
If the Company provides the Consultant with an abundance of changes, or the changes that are proposed are stated by the Client to be included in Scope, but their detail makes it such that the Consultant must spend more than double the estimated time to complete same, which shall be determined at the sole desecration of the Consultant, then the Parties agree that such changes will be completed on a Time and Materials basis if the total aggregate hours has reached double the anticipated amount, even if a UR Document has been written. Such scope creeps will be discussed with the Client and pointed out prior to invoices being generated. Such actions are taken only in the most extreme cases. The Company agrees that such excessive changes wave any expressed or implied price freeze in the Order or any other Quote.
2. Payment
(a) Fees/Compensation
Company shall pay to Consultant the fees as set forth in the applicable Order. If the applicable Order specifies that Consultant is to be compensated for work performed on an hourly basis (Time and Materials Project Assignment or Hourly Services Project Assignment), the hourly billing rates for each person engaged in providing the Services shall be as specified in the applicable Order. If the applicable Order specifies that Consultant is to be compensated for work performed by a fixed price (Fixed Price Project Assignment), the fixed price amount will be specified on the Order and a Quote will be executed to this effect.
(b) Invoices
Consultant shall invoice Company for all work performed according to the applicable Order. For all Fixed Price Project Assignments, Consultant shall invoice Company for all work performed according to the applicable Order. For Time and Materials Project Assignments and Hourly Services Project Assignments, Consultant shall submit detailed monthly invoices for all work performed. Consultant shall invoice Company monthly for travel or other permitted expenses incurred, and shall include receipts and supporting data for such expenses.
(c) Taxes
Consultant shall invoice Company and Company shall reimburse Consultant for any taxes actually paid by Consultant which are imposed upon Consultant by any governmental agency as a result of this Agreement with the exception of taxes based on Consultant’s income, status (such as governmental licenses to perform the Services), and equity.
(d) Terms
The Company agrees to pay the Consultant by wire transfer, escrow, Visa, Mastercard, American Express, or Paypal in advance for all services to be rendered. The Company acknowledges that the schedule set forth in any project automatically adjusts based on their nonconformance to the payment schedule. For each calendar day pre-payment is late (including Weekends), the Consultant shall adjust the schedule forward by 1 business day until the pre-payment is received in full. Consultant shall be under no obligation to provide any service until pre-payment is received against each invoice issued to the Company.
You understand that there are no refunds of any kind once a charge is approved and we never make exceptions to this rule. We are an hourly firm that provides creative services, which means that sometimes we have to work on something and get it wrong, in order to get it right. You acknowledge and agree that there is value in all research and development and that we do not offer refunds in any form.
Contractor uses 2 billing methods for each project:
i) Estimate Orders / Time and Material – If Your approved Order says “Estimate” at the top, You are a Time and Material account. Your invoices are due upon receipt. Estimate Order mean that We bill you weekly for the reported hours on the account at the agreed upon rate or $125 / hour, whatever is less. Estimate Orders are limited only by the number of hours We must work to complete Your requested tasks.
ii) Quote Orders / Flex Rate – The Company agrees to pay Us a set, fixed, weekly retainer payment that is defined by dividing the entire quoted amount on the Quote by the number of weeks on the project. You agree to pay us the amount shown on the weekly invoice upon receipt.
(e) Payment Demand
(i) The Consultant requires either a Retainer or a credit card on file with the Consultant to ensure mutual performance. The Consultant may, at it’s option, at any time and not necessarily on a set schedule, deduct payment from such payment method as has been used previously, is currently in use, or any method instructed by the Company, including, but not limited to, credit cards, pre-authorized bank or PayPal payments, and/or debit any security deposit or Retainer it holds, with or without notice to the Company. The Company shall receive a prompt and complete statement of all payments and invoices upon request delivered in writing to the Consultant.
(f) Retainer
(i) For each Order that is processed, We require a 30% retainer, unless You have an Approved Corporate account. Retainers are paid by wire transfer to the Company’s business banking account. Remittance instructions are provided in Your account setup documentation.
(ii) If Your project is a Time and Material project, Your 30% is calculated on the proposed budget. Should Your billing exceed that budget, We may ask You to provide an additional Retainer when We reassess the new budget total.
(iii) Your retainer will be established as an invoice on Your account. It is the policy of the Company to apply the Retainer against the final invoice the Consultant issues. The Parties agree that the Retainer will not be reduced or drawn from until the work described in the Order is complete. If We complete the agreed upon work, and a credit remains, such credit will be returned to You. If You terminate the project prior to completion, refuse to complete or abandon Your project, You agree that the Consultant shall be entitled to draw the Retainer in accordance with s. 17 below.
(g) Credit Reporting and Credit Checks
(i) You authorize us to pass personal information to credit reporting agencies for the purpose of credit checking, identity verification, and to asses your credit worthiness as it relates to your account, your retainer, and all business dealings with us. You also agree to us obtaining and passing personal information about you to credit reporting agencies. This information will be used to update and maintain credit information files and will be accessed by the customers of the credit reporting agency.
(ii) You also agree to us passing personal information about you to a credit reporting agency in the event that you default on your payment obligations.
3. Independent Consultant
(a) Consultant’s primary obligation hereunder is to complete the Services described above in Paragraph 1. Consultant’s relationship to the Company is that of an independent contractor and not as an employee.
4. Warranties of Consultant
(a) Consultant warrants to the Company that the necessary licenses and bonds have been secured by Consultant for performance of the services covered by this Agreement. Consultant further warrants that the services performed hereunder will be performed in a manner in accord with any statutes, regulations, ordinances or contracts applicable to the services covered hereunder, and will be performed in a manner in accord with ordinary business custom and usage.
(b) Consultant warrants that neither the performance of it’s duties under this Agreement, nor any deliverable or the use thereof, will infringe any patent, copyright, trade secret or other proprietary right of any third party.
5. Consultant Responsibility for Personnel
(a) All personnel supplied or used by Consultant shall be deemed employees or subcontractors of Consultant and neither Consultant nor any such personnel shall be considered employees, agents or subcontractors of the Company for any purpose whatsoever. Consultant assumes full responsibility for his/her actions and those of all such personnel while performing services under this Agreement, for the payment of compensation for any employees or subcontractors (including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes), workers’ compensation, disability benefits and the like to the extent applicable to the personnel involved, and for all such withholding and payment of taxes with respect to payments made by the Company to Consultant. The Consultant may be paid a fee if the Consultant refers your business to any of its partners or sub-contractors.
(b) Notwithstanding and without in any way limiting any terms and conditions set forth in this Agreement, all subcontractors of Consultant shall be deemed to have made all of the representations and warranties of Consultant set forth herein and all subcontractors and employees shall be subject to any obligations of Consultant hereunder, and, if requested by the Company, Consultant shall obtain from each subcontractor and employee its or his/her written consent to and acknowledgment of the terms of this Agreement. Consultant shall be responsible for any breach by any subcontractor or employee of any representations, warranties or obligations set forth in this Agreement.
6. Non-Solicitation and Recruitment
(a) Company agrees not to solicit for employment any employee or subcontractor of Consultant or recruit Consultant employees or subcontracting companies who are currently employed (or who were known by Company to have been employed in the last six (12) months) by Consultant unless prior written permission is obtained from Consultant. In the event Consultant grants such consent, then Company agrees to pay $40,000 as a placement or recruitment fee to Consultant. This provision shall remain in effect for a period of twelve (24) months after termination of this Contract. Should you breach this provision, you agree to pay the Consultant $40,000 for such an attempt to hire, whether or not the hire was successful.
7. Indemnification
(a) Our liability to You is limited. Under no circumstances will Consultant be liable to You or anyone else for any damages arising from Your use of the Site or the Service, or arising out of or in conjunction with this or any other Agreement, or any service or product linked to or from the Site or advertised on the Site, including without limitation, consequential, incidental, direct, indirect, punitive, exemplary or any other damages of any kind, including lost revenues or profits, even if We are advised beforehand of the possibility of such damages. You agree that the liability of the Consultant, if any, arising from any kind of legal claim relating to Your use of the Site or the Service will not exceed the amount You paid, if any, for the use of the Site or the Service. You agree to indemnify and hold harmless the Consultant, Our employees, owners, members, officers, representatives, affiliates, and business partners against any and all claims of whatever nature arising from Your use of the Site and the Service.
8. Rights in Work Product
(a) All reports, data, computer software programs and documentation, algorithms, program code, inventions and ideas, written material or other property, tangible or intangible, arising out of or resulting from the performance of this Agreement, whether developed by Consultant, Consultant’s employees, subcontractors or otherwise, and all proprietary rights thereto, including copyright rights therein, except as provided herein or agreed upon within Statements of Work entered into between company and Consultant, (the “Work Product”) shall belong to the party as indicated in the Order, Estimate or Quote. Whether the Order, Estimate or Quote does not bestow any rights with respect to the work product, then said rights shall be retained by the Consultant. As to copyrights, Consultant is a premium application services company and does not consider the deliverables a “work made for hire” agreement and that the Company shall not be deemed the author thereof for copyright purposes; unless otherwise stated and agreed to in the Statement of Work, Estimate, or Quote.
(b) Consultant has a licensing policy with respect to any source code developed. This Agreement shall automatically transfer copyright and source control to the Company upon the return of any discount indicated on the company’s Invoice and the full payment for all Services performed, regardless of when they occurred including services for which we have back billed or re-billed. The Company acknowledges that a discount is given as an assurance of additional business from the Company, and as insurance of the performance thereof.
(c) Where an Estimate, Quote, Order, or Invoice state specifically the source code is included, even if a discount is applied to Our Services, than the source code and other provisions will pass to the party Indicated on said document.
9. Confidential Information
(a) The Mutual Non-Disclosure Agreement shall continue in full force and effect throughout the Term, and nothing herein shall act to amend the provisions of the Mutual Non-Disclosure Agreement. To the extent the Mutual Non-Disclosure Agreement by its terms ends prior to the termination of any Order to this Agreement, the Parties agree that the term of the Mutual Non-Disclosure Agreement shall be extended until such time as the termination date of the last Order to this Agreement. This Agreement is a confidential agreement between Company and Consultant. Without the prior written consent of the other Party, this Agreement may not be shown to any third party other than government officials having appropriate jurisdiction and power to require disclosure of this Agreement, the Parties’ legal counsel and accountants, and the Parties’ authorized employees or agents. Notwithstanding the foregoing, this Agreement may be disclosed as necessary by reason of regulatory requirements beyond the reasonable control of Company or Consultant, as the case may be, in which event Company and Consultant agree to exercise diligence in limiting such disclosure to the minimum amount necessary under the particular circumstances.
10. Third Party Software
(a) The Company may provide Consultant with the use of software, data and related items of third parties. Consultant will adhere to the terms of any applicable license agreement covering such items, and at the end of Consultant’s performance hereunder or at the Company’s earlier direction, shall return all copies of such items furnished to it by the Company and keep no copies.
11. Disclosure
(a) Promptly upon expiration or termination of this Agreement, Consultant shall make complete disclosure to the Company of all discoveries and inventions or other information within the scope of Paragraphs 8 and 9, which discoveries, inventions or other information have not been previously disclosed to the Company. In addition, Consultant shall certify in writing that such disclosures are complete.
12. Intellectual Property
(a) All rights and licenses granted by the Consultant to the Company hereunder, including all software rights, shall, except as otherwise specifically set forth herein, be free and clear of any claim of rights (including moral rights such as any rights of identification of authorship, rights of approval on modifications, or limitation on subsequent modifications) by any person or entity. Consultant will indemnify, defend and hold harmless at its expense any action or claim brought against the Company that is based on any infringement, or claim of infringement, of any patent, trademark, copyright, trade secret or other intellectual property right arising from or relating to the Company’s (or its representatives’, manufacturers’, resellers’, distributors’ or end-users’) use, installation, sale, licensing, marketing or distribution of any materials, equipment, programs or services furnished by Consultant or its subcontractors to the Company hereunder, and Consultant will reimburse the Company for all costs and expenses, including but not limited to attorneys’ fees reasonably incurred in connection therewith. The Company shall notify Consultant promptly of any claim of infringement for which Consultant is responsible.
13. Use of Name and References
(a) Consultant may advertise, market or otherwise make known to others the contractual relationship between the Consultant and the Company. Any other information relating to the services performed under this Agreement, Orders, Estimates, Quotes and Work Statements, shall continue to be Confidential Information. Any references We have shared with You and the subsequent referenced applications are confidential. You require prior written approval to contact any of Our previous customers, references, or anyone associated with the Consultant. We only provide references in the same class of business as is proposed.
14. Expenses
(a) Consultant assumes the normal expenses incurred that are necessary to fulfill its obligations. However, the Company assumes and will reimburse the Consultant for all necessary extraordinary expenses incurred or paid by the Consultant in connection with, or related to, the performance of his services under this Agreement. Disbursements larger than $15,000 will be pre-approved by the Company prior to being incurred.
15. Insurance
(a) Consultant maintains an insurance policy of $2M per claim and $4M in aggregate with an insurer that has its rating above A+. A copy of the certificate of insurance will be provided upon request.
16. Conflict of Interest
(a) Consultant is not, and during the term of this Agreement shall not become, a party to any agreement or subject to any obligation which would impede or prohibit its proper execution and observance of this Agreement.
17. Termination
(a) The Company retains the right to terminate this Agreement with a thirty days notice, with or without cause. The Company will pay Consultant, before the end of the thirty days notice period, for all work performed and not yet paid for at the time of termination. Following such termination, the Company shall not be liable for any further payments hereunder or otherwise.
(b) Without limiting the Consultant’s other remedies, We may issue a warning, or temporarily suspend, indefinitely suspend or terminate Your Account or a Job, and refuse to provide any or all services to You if:
(i) You breach the letter or spirit of any terms and conditions of this Agreement or the linked policies and information incorporated herein by reference, including Our written policies and procedures posted on the Site or linked here;
(ii) We suspect or become aware that You have provided false or misleading information to us; or
(iii) We believe in Our sole discretion that Your actions may cause legal liability for You, Our customers, employees, partners, or are contrary to the interests of the Site, Service, or the Consultant user community. Once indefinitely suspended or terminated, You must not continue to use the Site under the same Account, a different Account, or reregister under a new Account. In addition, violations of this Agreement may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
(c) Consultant reserves the right to terminate any access, Account, Agreement, or Job for any reason or no reason, at its sole discretion and to refuse to provide any service to You in the future. We will notify You if We cancel Your account, unless in Our judgment giving notice would cause a risk of further violation or damages. However, We will notify You that Your Account will be canceled if the law requires such notification. When Your Account is terminated for any reason, You may no longer have access to data, messages, files and other material You keep on the Site. The material may be deleted along with all Your previous posts or other material found therein.
(d) Should any hosted application We’ve developed for You be deleted from Our system for non-payment, all data contained therein, including any custom developed elements, will be forever and irrevocably deleted and cannot be restored. We do not keep backups of it’s projects beyond any such termination and will not be able to provide You access to the original source files or any of the Work Product. You are advised to use Your given credentials to access Your account at any time You wish to perform a backup of Your Work Product, site and solution.
(e) All rights of the Consultant will survive the Termination of this Agreement by any party.
(f) It is very important that the Parties acknowledge, and do acknowledge, that certain plans and resource commitments are made in the fulfillment of such Orders that typically last several months or more. Premature cancellation by the Company causes losses to the Consultant, and as a result, we have formulated a policy regarding Restrainers and Escrow funds when the Company issues such premature cancellation to wit:
i) If You terminate or refuse to complete the project in any way, Consultant reserves the right to immediately bill the entire quoted amount of Your project, whether the services have been provided or not;
ii) If You terminate or refuse to complete a project and funds are remaining with an escrow provider or Your Retainer, You expressly agree that upon said termination all said funds will be immediately and irrevocably released to the Consultant, whether the Services or milestone have been completed or not;
iii) If You terminate or refuse to complete a project and fail to give 30 days advance notice as a required in section 17(a), then the consultant shall bill you for a full days work for each staff member until (i) the staff member has been assigned to other work or another project or (ii) 30 days has passed from the date of the termination notice whichever is less. Where neither party has submitted a termination notice, the billing shall take place 30 days from the last suspension on an account.
(g) We are very reasonable in project close downs and may, at Our option, allow a refund to You if the project, in Our opinion, warrants such refund. You expressly waive any right to claim for the return of any funds where You have terminated the project or refuse to continue. You expressly wave any right of chargeback for services provided under this agreement and acknowledge that refunds are processed as a credit to your internal financial account only. This means that you are receiving a store credit that can be used for future services by the Consultant.
18. Partners
(a) The Consultant has an extensive partner network of graphic artists and other IT professionals that sell the services of the Consultant as authorized partners. You acknowledge:
(i) Where the partner has not disclosed specifically that they are working with the Consultant, you acknowledge that this is a White Label agreement and that you must complete all business with the Partner directly, including billing and payment disputes;
(ii) (1) Where you have a billing account assigned to your name, and you have logged into our billing system, which requires you to accept these Standard Terms and Conditions, and (2) Remit to the Consultant directly, you are a direct Client of the Consultant and have been referred to us under our Affiliate or Mix Creative partner levels. This Agreement shall replace any other agreement, written, verbal, or otherwise that you may have with our Partner as it relates to Orders and Services fulfilled by the Consultant.
(iii) You are considered a direct Client of the Consultant and you agreed to be treated as such. The Partner involved will be paid a commission separately by the Consultant for the referral. Where you are a Client at this level, You are not entitled to transfer funds to the Partner for Services fulfilled by the Consultant.
(b) Any relationship you have with our Partner outside of these Orders shall be separate and apart from the Company.
19. Disputes
(a) The parties agree that, both during and after the performance of their responsibilities under this Agreement, each of them shall make bona fide efforts to resolve any disputes arising between them by amicable negotiations and provide frank, candid and timely disclosure of all relevant facts, information and documents to facilitate those negotiations.
(b) The parties further agree to use their best efforts to conduct any dispute resolution procedures herein as efficiently and cost effectively as possible.
(c) The parties agree to attempt to resolve all disputes arising out of or in connection with this contract, or in respect of any legal relationship associated with it or from it, by mediated negotiation with the assistance of a neutral person appointed by the British Columbia International Commercial Arbitration Centre administered under its Commercial Mediation Rules.
(d) If the dispute cannot be settled within 30 days after the mediator has been appointed, or such other period agreed to in writing by the parties, the dispute shall be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre, pursuant to its Rules. In the absence of any written agreement otherwise, the place of arbitration shall be Vancouver, British Columbia.
20. General
(a) The failure of either party hereto to enforce any right under this Agreement shall not be construed to be a waiver of that right, or of damages caused thereby, or of any other rights under this Agreement.
(b) All notices shall be in writing and given by personal delivery, certified mail, return receipt requested, or by commercial overnight courier for next business day delivery, to the recipient’s address set forth above or in the Statement of Work, Estimate, or Quote. Notice shall be deemed given the date of personal delivery, the fifth business day after mailing, or the next business day after delivery to such courier (unless the return receipt or the courier’s records evidence a later delivery). Though We are happy to take customer service requests by email, notices under this agreement must physically be delivered to Our office in writing.
(c) This Agreement constitutes the entire agreement between the parties with respect to its subject matter; except as provided herein, all other prior agreements, representations, statements, negotiations and undertakings with respect to such subject matter are terminated and superseded hereby. No outside agreement, other than the included Order, Engagement Letter, Our Quote, or Estimate, shall govern this Agreement in anyway whatsoever without the specific written permission of the Consultant. You warrant that You have not relied on any statement of any employee in so contracting with the Consultant and hereby agree not to rely on any such statement in the future. Where there is any discrepancy whatsoever between an Order, Engagement Letter, or any other understand, these Terms and Conditions shall take precedent.
(d) No amendment to this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each party. The term “Agreement”, as used herein, includes any future written amendments, modifications, or supplements made in accordance herewith. This also specifically means that You must document in a charge order any agreed change in scope, features, or other duties We are to perform. A conversation with any staff member is not sufficient to modify this agreement. No staff member, regardless of rank, has the ability to accept non-written changes to this Agreement or any project scope, except in accordance with these Standard Terms and Conditions. You specifically acknowledge that if You change any feature, not matter how small, that you must immediately execute a Form 12 – Standard Change Order or accept and agree to a new Estimate. All changes done on any job will incur additional cost. Should you not request such document, the changes will be billed at Our standard rates that are in effect from time to time. This provision in no way limits any other remedy afforded to the Consultant elsewhere in this or any other Agreement.
(e) Force Majeure: Neither party shall be responsible for any reasonable delay and/or failure in performance of its obligations when such failure or delay is caused by an event beyond the control of such party such as natural disasters and major politic events (war, revolution, etc.)
(f) In the event any provision of this Agreement is held illegal, void or unenforceable, to any extent, in whole or in part, as to any situation or person, the balance shall remain in effect and the provision in question shall remain in effect as to all other persons or situations, as the case may be.
(g) This Agreement shall bind and inure to the benefit of the Company and any successor of the Company by reorganization, merger, consolidation or liquidation and any assignee of all or substantially all of its business or assets, but otherwise this Agreement may not be assigned by the Company or Consultant.
(h) The construction, interpretation and performance of this Agreement, and the transactions under it, shall be governed by and construed in accordance with the laws of the Province of British Columbia. After an attempt of both parties to resolve any dispute or disagreement in good faith, they agreed to submit any action to enforce this Agreement, or any dispute arising from or relating to this Agreement to independent arbitrators as described in Section 19. The procedure and rules to follow to enforce this arbitrary clause are determined exclusively by the laws of the Province of British Columbia, Canada.
(i) Update to Agreement. The Consultant frequently updates it’s Standard Terms and Conditions. You agree to visit Our website and to consult these terms from time to time, and no less than every 30 days, to review potential changes made to the Agreement. If You do not agree to the changes or update to the Agreement, You must notify the Consultant, in writing, and specifically provide us notice of which new provisions to which you dispute. If you deliver such notice to us, it will have the same cause and effect as a termination notice upon us and Your services will terminate 30 days hence, unless, in it’s sole discretion, the Consultant specifically agrees in writing to accept Your opt-out of the provision under contestation. You may subscribe to update notifications of this agreement on our website
(j) Assignment. You may not assign this Agreement without the prior written consent of the Consultant. The Consultant may assign it’s obligations under this agreement at any time, for any reason, to any natural person or corporate body, society, or trust. The rights and obligations of this Agreement shall bind and benefit any successors or assigns of the parties.