Terms and Conditions Agreement

These Terms and Conditions ("Agreement") are entered into by and between the Company and all parties engaging with the Company, including Clients, Employees and Subcontractors. They are incorporated by reference into each applicable Master Service Agreement or Subcontractor Agreement. Each party agrees to be bound by these Terms as they pertain to their individual relationship with the Company. This Agreement governs the engagement of the Company with Clients, Employees and Subcontractors in the delivery of services and deliverables as outlined in the applicable Scope of Work (SOW) and related Change Request(s).

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1. DEFINITIONS:

1. Terms and Conditions agreement refers to this document and includes all its exhibits, appendices, and any subsequent amendments made in writing by both parties.
2. The Statement of Work/Scope of Work (SOW) outlines the specific details, requirements, deliverables, timelines, and other pertinent information related to the project to be performed by the Company for the Client.
3. Change Order Form(s)/Change Request(s) (COF) shall mean any written request initiated by either the Client or the Company that seeks to modify, add to, or delete the scope, deliverables, timelines, specifications, or any other terms outlined in the SOW. A Change Order must be mutually agreed upon in writing by both parties before any modifications are implemented.
4. Deliverables shall be any tangible result, product, service, or document the Company must produce and deliver to the Client as specified in the SOW.

1. Deliverables can include (but are not limited to) software, documentation, documents, designs, reports, testing, services, and training materials.

5. Work Product/Product shall mean all deliverables, creations, developments, inventions, designs, code, documentation, and any other materials produced by the Company during the Project, as specified in the SOW and any subsequent agreements.
6. Intellectual Property Rights shall be any rights, title, and interest in and to any patent, copyright, trade secret, trademark, or other intellectual property rights arising under the laws of Canada or any other jurisdiction.
7. Pre-existing intellectual property shall be any intellectual property owned or controlled by the developer for use in the project, as specified in the SOW.
8. Client materials shall be any materials, data, content, or information provided by the Client to the Company for use in the project, as specified in the SOW.
9. Company Tools shall be any tools, software, libraries, or other resources owned or controlled by the Company and used while performing the services under this Agreement.
10. Confidential Information shall be any non-public information, data, or material, in any form or medium, whether oral, written, graphic, or electronic, that is disclosed by one party to the other in connection with the performance of this Agreement, which is designated as confidential or which reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure,
11. Acceptance Criteria shall be the criteria that must be met for each deliverable to be accepted by the Client, as specified in the SOW.
12. The Project shall be the projects or projects as described in the SOW and COFs.
13. Features and Functionality: shall be the specific capabilities, characteristics, functionalities, and attributes of the project to be implemented by the Company as outlined in the SOW.

1. This includes but is not limited to User interface elements, Interactive features, Content management system (CMS) capabilities, E-commerce functionality, Database integration, User authentication and authorization, Search functionality, Third-party integrations, Mobile responsiveness, Accessibility features, Performance and security measures, and any other specified functionalities or features described in the SOW.

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2. CONTROLLING AGREEMENT:

1. Controlling agreement:

1. Order of precedence:

1. In the event of any conflict or inconsistency between the MSA, SCA, the Terms and Conditions agreement, SOW and COF, the following order of precedence shall apply:

Hierarchy	Clients	Subcontractors and Employees
1.	Terms and Conditions Agreement (T&C)	Terms and Conditions Agreement (T&C)
2.	Non-Disclosure Agreement (NDA)	Non-Disclosure Agreement (NDA)
3.	Master Service Agreement (MSA)	Subcontractor Agreement (SCA)
4.	Scope of Work (SOW)	Scope of Work (SOW)
5.	Change Order Form(s) (COF)	Change Order Form(s) (COF)
6.		Schedule(s)

2. Supremacy of Terms and Conditions

1. The Terms and Conditions Agreement, attached hereto and incorporated by reference, shall be the controlling agreement governing all services and relationships engaged by Company provides. In the event of any conflict between the Terms and Conditions Agreement and any lower-priority documents, the Terms and Conditions Agreement shall prevail.

3. NATURE OF SERVICES:

1. The Company agrees to provide the services as described in the MSA, SOW(s), and COF(s).
2. The Employees and Subcontractors agree to provide the services as described in the MSA, SOW(s), and COF(s).

4. PROJECT SPECIFICATIONS:

1. The project will be divided into phases with specific deliverables for each phase, as outlined in the MSA, SOW(s) and COF(s). The Company will deliver the agreed-upon work per the timeline outlined in the previous agreements, subject to any changes requested by the Client or notified by the Company.

5. COMPENSATION AND PAYMENT TERMS:

1. All compensation terms, including specific rates, schedules, or milestones, shall be defined in the applicable agreement between the Company and the respective Client, Employee or Subcontractor, and further detailed in associated SOW(s) or COF(s).
2. Fees and Payment Schedules:

1. The Client agrees to pay the Company in accordance with the MSA, SOW(s) and COF(s).
2. The Employees and Subcontractors agree to accept payment in accordance with the SCA, SOW(s), COF(s) and Schedules.

6. RESPONSIBILITIES

1. General Cooperation:

1. All parties agree to act in good faith and provide timely communication, materials, and support required to fulfill their respective obligations under this Agreement and any applicable documents.

7. REVISIONS AND CHANGES:

1. Specific revision policies, such as the number of included revisions, approval cycles, fee adjustment, change in deliverables, project timelines, impacts and changes shall be governed by the applicable Master Service Agreement or Subcontractor Agreement.

8. INTELLECTUAL PROPERTY:

1. Ownership of Work Product: All rights, titles and interests in any work product created during the project shall be the Client's exclusive property. The Company assigns all rights to the Client upon creation.
2. Pre-Existing Intellectual Property: The Company retains ownership of any pre-existing intellectual property but grants the client a non-exclusive, perpetual, royalty-free license to use as part of their project.

1. Pre-existing intellectual property includes but is not limited to custom libraries, frameworks, templates, design elements, and proprietary code snippets not incorporated into the Project.

3. Usage Rights: The Client has the exclusive right to use, modify, and distribute the work product as they see fit.
4. Licensing

1. Details of any third-party licenses required for project execution will be outlined within the SOW.
2. Extra licensing and software is subject to additional charges to the Client.

9. CONFIDENTIALITY:

1. The parties agree that their respective obligations regarding the protection and handling of Confidential Information are governed by the terms set forth in the applicable Non-Disclosure Agreement ("NDA") entered into between them.

10. INDEMNIFICATION:

1. Company’s Indemnification Obligations: The Company shall indemnify, defend, and hold harmless the Client and its officers, directors, employees, agents, and affiliates (collectively, the "Client Indemnitees") from and against any claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to:

1. Any breach of this Agreement by the Company;
2. Any negligent act, error, omission, or willful misconduct of the Company or its employees or subcontractors;
3. Any infringement or alleged infringement of any intellectual property rights of any third party by the Company’s work product, provided that such infringement arises solely from the Company’s actions or omissions;
4. Any violation or alleged violation of any law, regulation, or governmental order by the Company in connection with the performance of its obligations under this Agreement.

2. Client's Indemnification Obligations: The Client shall indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, subcontractors, and affiliates (collectively, the "Company Indemnitees") from and against any claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or related to:

1. Any breach of this Agreement by the Client;
2. Any negligent act, error, or omission, or willful misconduct of the Client or its employees or representatives;
3. Any violation or alleged violation of any law, regulation, or governmental order by the Client, including but not limited to any claim related to the Client's content, data, or materials provided to the Company for use in the project;
4. Any claim that the Client's content, data, or materials provided to the Company infringe or misappropriate any intellectual property rights of any third party.

3. Procedure: Each party's indemnification obligations hereunder are subject to the indemnified party providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, reasonable cooperation in defence of such claim, and sole control over the defence and settlement thereof. At its own expense, the indemnified party may participate in the defence and settlement of any claim with counsel of its choosing.

11. WARRANTIES AND DISCLAIMERS:

1. Exclusion of Warranty: The Client acknowledges and agrees that, upon acceptance of the product, all warranties, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement, are excluded to the fullest extent permitted by law.
2. The Company warrants that the services provided under this Agreement will meet the specifications and requirements outlined in the project proposal.
3. All subcontractors and employees of the Company warrant that the services provided under this Agreement will meet the specifications and requirements outlined in the project proposal.
4. Except as expressly provided in this Agreement, the Company disclaims all warranties, express or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. The product and related services are provided "as is" and "as available" without any warranty of any kind after the Client's acceptance.
5. The Company shall not be responsible for the performance, functionality, or availability of any third-party services, software, or plugins integrated into the product. The Client acknowledges that the use of such third-party services or software is at their own risk
6. The Company makes no warranty that the product will be completely secure or free from vulnerabilities, attacks, or breaches. The Company shall not be liable for any loss or damage resulting from security incidents or vulnerabilities in the product after the Client's acceptance.
7. The Company does not warrant that the product will be uninterrupted or error-free. The Company shall not be liable for any disruptions, delays, or errors in the performance of the product caused by factors outside the Company's control, including but not limited to internet service provider outages, hosting provider issues, or third-party software failures.
8. Subcontractors and employees represent and warrant that their services will be provided professionally and in accordance with the applicable Scope of Work. The Company shall not be liable for subcontractor non-performance except where oversight or direction from the Company is proven negligent.

12. LIMITATION OF LIABILITY AND ACCEPTANCE:

1. Limitation of liability:

1. Disclaimer of liability: The Company shall not be liable for any claims, damages, or losses arising out of or related to the use, performance, or functionality of the product once the Client has accepted the project. This includes, but is not limited to, issues related to:

1. Content accuracy, completeness, or appropriateness
2. Security vulnerabilities or data breaches
3. Website downtime or performance issues
4. Compatibility with third-party software, plugins, or systems
5. Subsequent modifications or updates made by the Client or third parties

13. ACCEPTANCE AND TRANSFER OF LIABILITY

1. Transfer of Liability: Upon project completion and acceptance by the Client, all liability for the product shall be transferred to the Client. The Client accepts the product "as is," and the Company shall not be liable for any defects, errors, or issues discovered after acceptance, except for those covered under warranty.
2. Acceptance: The product shall be deemed accepted by the Client upon the earlier of:

1. Written acceptance of the final product by the Client or
2. Ten (10) business days after delivery of the final product to the Client, unless the Client provides written notice of rejection within such period.

14. LIMITATION OF REMEDIES:

1. Exclusive Remedy: In the event of any breach of this Agreement by the Company, the Client's sole and exclusive remedy shall be the correction or replacement of the services by the Company. If the Company cannot provide such correction or replacement within a reasonable time, the Client's sole remedy shall be a partial refund of the fees paid for the services at issue.
2. No Indirect Damages: Under no circumstances shall the Company be liable for any indirect, incidental, special, consequential, or punitive damages, including but not limited to loss of profits, revenue, data, or use, even if the Company has been advised of the possibility of such damages.
3. Cap on Damages: The Company's total liability to the Client for any claim arising out of or related to this Agreement, whether in contract, tort, or otherwise, shall not exceed the total fees paid by the Client to the Company under this Agreement.
4. Specific Exclusions: The remedies outlined in this section are the Client's exclusive remedies and shall apply even if such remedies fail of their essential purpose. The Client acknowledges that the limitations outlined in this section are an essential part of the Agreement and that in the absence of such limitations, the terms and conditions of this Agreement would be substantially different.

15. TERMINATION:

1. Termination by Either Party: Either party may terminate this Agreement upon written notice to the other party in the following circumstances:

1. Material Breach: If the other party commits a material breach of any provision of this Agreement and fails to remedy such breach within 5 business days after receiving written notice specifying the breach.
2. Insolvency: If the other party becomes insolvent, bankrupt, or enters into liquidation, whether compulsory or voluntary or makes any assignment for the benefit of creditors or similar arrangements.
3. Force Majeure Events: Neither Party shall be liable for any failure to perform its obligations under this Agreement if such failure results from any event beyond the reasonable control of the affected Party, including but not limited to natural disasters, acts of government, war, civil unrest, acts of terrorism, fire, floods, epidemics, pandemics, and other acts of God ("Force Majeure Event").

1. Notification: The Party affected by a Force Majeure Event shall promptly notify the other Party in writing of the occurrence of such event and its expected duration.
2. Suspension of Obligations: Upon notification, all obligations under this Agreement shall be suspended for the duration of the Force Majeure Event.
3. Termination Due to Prolonged Force Majeure: If a Force Majeure Event continues for a period exceeding thirty (30) days, either Party may terminate this Agreement upon written notice to the other Party.
4. Partial Refund: In the event of termination of this Agreement due to a Force Majeure Event, the Company may issue a partial refund to the Client. The refund amount will be calculated based on the proportion of the Project completed before the Force Majeure Event and any non-recoverable costs incurred by the Company.

4. Non-Payment: If the other party fails to make any payment when due under this Agreement and such failure continues for 10 business days after written notice of non-payment.
5. Regulatory Requirements: If either party is required to terminate this Agreement by applicable laws, regulations, or governmental orders.

2. Effect of Termination: Upon termination of this Agreement for any reason:

1. The Company shall promptly cease all work under this Agreement and shall deliver to the Client any work product completed as of the date of termination.
2. Any amounts owed to the Company for work completed before the effective termination date shall become immediately due and payable.
3. All previous payments made by the Client are subject to non-refundable as applicable and in accordance with Canadian laws.

3. Survival: The provisions of this Agreement that by their nature should survive termination, including but not limited to confidentiality, indemnification, and limitation of liability, shall survive termination.

16. DISPUTE RESOLUTION:

1. Both parties agree to be governed by the legislation of Alberta and Canada.
2. This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta, Canada, and the parties irrevocably attorn to the exclusive jurisdiction of the courts of Alberta without regard to its conflict of laws principles.
3. Negotiation: In the event of a dispute, the Parties agree to work towards a resolution through good faith negotiation.

Mediation or binding arbitration:  If a dispute cannot be resolved through good faith negotiation, the Parties agree to submit to binding mediation or arbitration.

Attorney fees: Attorney’s Fees. In the event of Arbitration and/or Mediation, the prevailing party will be entitled to its legal fees, including, but not limited to, its attorneys’ fees.

17. GOVERNING LAW:

1. Compliance Obligation: The Company agrees to comply with all applicable laws, regulations, and governmental requirements in performing services under this Agreement.
2. Canadian Legislation and Regulations: The parties acknowledge and agree that all services provided under this Agreement shall be in compliance with the laws, regulations, and standards enforced or promoted by the Canadian government, including but not limited to those related to data protection, privacy, accessibility, and intellectual property rights.
3. Representations and Warranties: The Company represents and warrants that all services provided under this Agreement shall be performed in accordance with the requirements of Canadian legislation and regulations.

18. SEVERABILITY:

1. If any provision in this Agreement is determined to be invalid, illegal, unenforceable, or contain spelling or typos, in whole or in part, by any court of competent jurisdiction, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
2. If such limitation or elimination of any provision of this Agreement would materially alter the economic deal between the Parties, then either Party may terminate this Agreement upon written notice to the other Party. In such event, the Parties shall negotiate in good faith to modify the terms of this Agreement to reflect the original intent of the Parties as closely as possible in a mutually acceptable manner.