TERMS AND CONDITIONS

These terms and conditions (the “Terms and Conditions”) govern the supply of services by Worldwide Web Solutions (“WWS”, “us”, “we”, “ours” and words of like import) to our customers under statements of work that we may enter into with them from time to time.



  1. DEFINITIONS

    1. For the purposes of the Agreement:

“Confidential Information” means all information that is not generally available to or used by others and that is disclosed or made available by one party to the other party in connection with the Agreement. Confidential Information includes, but is not limited to, research, product plans, products, services, customer lists, development plans, designs, drawings, marketing, finances, and other business information. Confidential Information does not include any information that: (i) was publicly known and made generally available in the public domain prior to the time it was disclosed to the Receiving Party, (ii) became publicly known and made generally available, after disclosure to the Receiving Party, through no wrongful action or inaction of the Receiving Party, or (iii) was in the Receiving Party’s possession, without confidentiality restrictions, at the time of disclosure to it, as shown by Receiving Party’s files and records. For clarity, backlinks that we create for you in the performance of the Services are not your Confidential Information.

“Client”, “you” and “yours” and words of like import means the purchaser of Services from WWS under these Terms and Conditions.

“Client Materials” means any software, images, text or other content or media provided by you for use by us in connection with the Services.

“Default” means a default as set out in Article 5.

“Deliverable” means any deliverable specified in a Statement of Work or required under a Statement of Work to be delivered to you in the course of the Services.

“Disclosing Party” means a party to the Agreement that discloses, either directly or through agents, Confidential Information to a Receiving Party.

“Fees” means the fees for the Services that are described in the Agreement. The Fees are set out more particularly in the Statement of Work.

“Pre-Existing Works” means any materials created or owned or licensed by us at the time of the commencement of the Services, or created or acquired or licensed by us after the commencement of the Services other than pursuant to the Services.

“Receiving Party” means a party to the Agreement that receives Confidential Information from a Disclosing Party.

“Representatives” means a party's directors, officers, employees, subcontractors and agents.

“Services” means the services provided by us to you under the Agreement. The Services are set out more particularly in the Statement of Work.

“Third-Party Materials” means any materials, other than Client Materials, that are owned by a third party or third parties and which we include in a Deliverable.

“Work Product” means any software, code, scripts, designs, materials, documentation or other works of authorship or other information, that are both (i) created by us in the performance of the Services, and (ii) stated in the Statement of Work to be your property. Work Product does not include Pre-Existing Materials or Third-Party Materials, and also does not include ideas, concepts, processes, procedures, techniques, methods or know-how unless the Statement of Work expressly states otherwise. For clarity, backlinks that we create for you in the performance of the Services are, as between you and us, our property.



  1. THE AGREEMENT AND STATEMENTS OF WORK

    1. These Terms and Conditions apply to all of our services to you (the “Services”, and when used in reference to a particular Agreement or a particular Statement of Work, means the applicable Services) under any statement of work (each, a “Statement of Work”, and when used in reference to a particular Agreement or particular Services, means the applicable Statement of Work) we may from time to time enter into in writing with you. These Terms and Conditions apply notwithstanding the terms of any purchase order or RFP or other terms of Client of any kind, unless we have expressly agreed otherwise in the applicable Statement of Work.

    2. These Terms and Conditions, together with the applicable Statement of Work, constitute a legally binding agreement (when used in reference to a particular Statement of Work or particular Services, the agreement resulting from these Terms and Conditions and the Statement of Work is referred to as the “Agreement”), and govern our delivery and your receipt and use of the Services. In the event of any conflict of inconsistency between these Terms and Conditions and a Statement of Work, the Statement of Work shall prevail.

    3. An Agreement is effective from and after the effective date stated in the Statement of Work, or if no effective date is stated in the Statement of Work, from and after the date on which the last of you and WWS executes the Statement of Work, or if both do not execute the Statement of Work, from and after the date we commence performing the Services at your request.



  1. THE SERVICES

    1. We shall perform, or cause to be performed (including through appropriate supervision and inspection), the Services, and otherwise fulfill our obligations under the Agreement, exercising reasonable skill, care and diligence, in accordance with recognized professional and industry standards, in a timely manner and in accordance with the terms and conditions of the Agreement. We possess the knowledge, skill and experience necessary for the provision and completion of the Services in accordance with the terms of the Agreement, and each worker furnished or deployed by us under the Agreement shall be competent and qualified to perform the Services required of the worker.

    2. Any Deliverable provided by us to you will comply in all material respects with the specifications therefor set out in the Statement of Work. If you notify us of any non-compliance of a Deliverable with this warranty during the 30 days after your acceptance of it we shall use reasonable and repeated efforts to correct the non-compliance at our expense. Other than termination of the Agreement for breach, this warranty is your sole remedy for non-compliance of a Deliverable with this warranty.

    3. We may outsource or subcontract the performance of Services, but we shall be liable for the performance thereof as though the Services were performed by us directly, and any subcontractor shall be subject to confidentiality and intellectual property ownership obligations to us that are consistent with the Agreement.

    4. You acknowledge that unless a Statement of Work provides for particular dates and states that they are firm commitments, all deadlines and date milestones in a Statement of Work are approximate. You also acknowledge that to the extent our performance of the Services is delayed by your acts or omissions, any deadline or date milestone that applies to us and is affected by such delay shall be extended on a day-for-day basis by the amount of the delay. Such delays are also subject to additional costs, to be discussed and agreed by you and us at the applicable time.



  1. FEES, EXPENSES AND TAXES, AND BILLING

    1. In consideration of the provision of the Services, you shall pay to us the Fees in accordance with the Agreement. You shall also reimburse us for any expenses that are set forth in a Statement of Work, or otherwise approved by you in advance in writing. You shall pay for the Services in accordance with the Statement of Work. Payment shall be due within 30 days of the date of the invoice.

    2. You shall pay all applicable sales and excise taxes, including HST, on amounts due under the Agreement.

    3. You shall pay us interest on any amounts due hereunder that are not paid when due. Interest shall be calculated at the rate of 1.5% per month, and shall also be payable on overdue interest.

    4. In the event that any amounts properly due remain unpaid after the due date, in addition to any other remedies we might have under the Agreement or in law, we have the right on notice to you to (i) immediately discontinue providing the Services, and/or (ii) alter the Fees and billing under the Statement of Work should you wish to continue receiving the Services after paying all overdue amounts.



  1. DEFAULT AND TERMINATION

    1. The term of an Agreement will be set forth in the Statement of Work and will continue for that period until its early termination in accordance with this Article 5. Upon the expiration of the initial period set out in the Statement of Work the term of the Agreement shall automatically renew for successive one month periods until its early termination in accordance with this Article 5 (such initial and any such renewal periods, together, the “Term”).

    2. The following events are a Default by a party where the default is not cured in the relevant cure period:

      1. a party fails to perform or observe any of its material obligations under the Agreement and the failure continues unremedied for 5 days following receipt of a notice of the failure from the other party;

      2. a party becomes insolvent, commits any act of bankruptcy (as set out in the Bankruptcy and Insolvency Act (Canada)) or makes a proposal under the Companies Creditors Arrangement Act (Canada); or

      3. a party fails to make payment when due to the other party, and such failure continues unremedied for 30 days following receipt of notice of Default from the other party.

    1. Upon Default, the non-defaulting party may do any or all of the following:

      1. it may immediately terminate the Agreement by giving notice; and

      1. it may exercise any of its other rights and remedies provided for hereunder or otherwise available to it at law or in equity.

    1. You may terminate the Agreement for convenience upon one month’s written notice to us. If you give us such notice we will as soon as reasonably practicable cease performing the Services, and you will pay to us the amount specified in the applicable Statement of Work in relation to your termination for convenience, or if no such amount is specified, a fee based on our standard time and materials rates for the Services performed to the time we cease performing Services, plus our approved expenses, any third-party costs set out in the Statement of Work, and any applicable sales and excise taxes, all within such month.

    2. Upon termination, each party shall return to the other the other party’s Confidential Information or, upon request, destroy the Confidential Information and all copies and certify in writing that they have been destroyed. All obligations arising prior to termination shall be complied with and any provisions of the Agreement that by their nature operate beyond the termination or expiry of the Agreement shall survive such termination. Upon a termination under Section 5.4, any amounts paid by you to the effective time of termination are non-refundable, and within one month of the effective time of termination you shall pay us an equitable amount for any Services performed by us after the last payment by you before such termination, including reimbursement for all expenses incurred by us in accordance with the Agreement. For clarity, after any expiration or termination of the Term we have the right, in our sole discretion for any reason or for no reason (including for the benefit of any other customer), to remove or change backlinks we created for you under the Services.



  1. INTELLECTUAL PROPERTY AND LICENSES

    1. We shall and do hereby assign to you all right, title and interest to any Work Product. Any other work performed by us and work product created by us in the performance of the Services is our property. Such assignment shall occur automatically upon the later of (i) the creation of the Work Product, and (ii) your payment for the Work Product (or in the case of your termination for convenience, the amount required to be paid hereunder in such event) in accordance with the Agreement. We confirm that we require any individuals who perform any of the Services to waive any moral rights they may have in the Work Product. Upon the assignment of Work Product to you under the Agreement, subject to the Agreement it becomes, as between us and you, your Confidential Information.

    2. We shall and do hereby grant to you a non-exclusive, royalty-free (except for amounts due hereunder) perpetual license to use any Pre-Existing Materials included in a Deliverable. This license allows you to use such Pre-Existing Materials in connection with the Deliverable, allows you to modify the Pre-Existing Materials to the extent necessary to modify the Deliverable, can be sublicensed to any user of the Deliverable and can be assigned to any transferee of the Deliverable. This license survives any termination or expiry of the Agreement, except for a termination by us for your breach of the Agreement.

    3. Deliverables shall not include any Third-Party Materials except as set forth in the Statement of Work or as otherwise approved by you in writing.

    4. We will from time to time and at all times hereafter upon every reasonable request, and at your expense, execute or cause to be executed all such further deeds, documents, writings or other instruments and give all such further assurances as may be required to consummate the assignments set forth in this Article.



  1. CONFIDENTIALITY

    1. Each party acknowledges that it would be damaging to the other party if its Confidential Information were disclosed to or obtained by third parties. Each party shall make all commercially reasonable efforts during the Term and thereafter to prevent the other party’s Confidential Information from being disclosed to or obtained by any person or entity for any purpose except as described in the Agreement. Each party’s efforts will not be less than those that it takes to prevent disclosure of its own Confidential Information. The Receiving Party will be responsible for breaches by its Representatives of the Agreement. Without limiting the generality of the foregoing, WWS will keep confidential all Confidential Information furnished to it or its Representatives and will use such Confidential Information solely for the purpose of providing the Services.

    2. It is not a breach of Section 7.1 to disclose Confidential Information required to be disclosed by law, judicial or arbitration process or by governmental authorities, provided that the Receiving Party first gives the Disclosing Party reasonable notice of any required disclosure pursuant to such law, order or process and takes all reasonable steps to restrict such disclosure and protect the confidentiality to the extent possible and fully cooperates with the Disclosing Party, in any efforts Disclosing Party may reasonably take to challenge or delay such disclosure.

    3. Each party acknowledges and agrees that:

  1. the restrictions set forth in this Article 7 are reasonable in the circumstances and the Receiving Party waives all defenses to the strict enforcement of the restrictions;

  2. a violation of any of the provisions of this Article 7 will result in immediate and irreparable harm and damage to the Disclosing Party; and

  3. in the event of any violation of any provision of this Article 7, the Disclosing Party shall be entitled to apply for equitable relief by way of temporary or permanent injunction and to such other relief as any court of competent jurisdiction may deem just and proper.

    1. This Article 7 shall not be construed to limit either the Disclosing Party or the Receiving Party’s right to independently develop or acquire products, provided it is done without use of the other party's Confidential Information. Further, the Receiving Party shall be free to use for any purpose the residuals resulting from access to or work with the Confidential Information of the Disclosing Party, provided that the Receiving Party shall not disclose the Confidential Information except as expressly permitted pursuant to the terms of the Agreement. The term "residuals" means information in intangible form, which is retained in unaided memory by persons who have had access to the Confidential Information, including ideas, concepts, know-how or techniques contained therein. The Receiving Party shall not have any obligation to limit or restrict the assignment of such persons or to pay royalties for any work resulting from the use of residuals.



  1. WARRANTIES, LIMITATION OF LIABILITY AND INDEMNITIES

    1. Except as specifically set forth in the Agreement, WWS makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Services or any Deliverable. You acknowledge that the nature of search engine optimization services may involve diminished effectiveness of the Services as internet search engines change their search methodologies and as internet technologies change. WWS does not represent or warrant (a) that the use of the Services or any Deliverable will be uninterrupted or error-free or operate in combination with any other hardware, software, system or data, or (b) that all errors or defects will be corrected. Except as specifically set forth in the Agreement, all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantable quality, merchantability, fitness for a particular use or purpose, or non-infringement of third party intellectual property rights, are disclaimed to the maximum extent permitted by applicable law.

    2. WWS shall not have any responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of the Client Materials, or for obtaining rights to use or title to any Client Materials, or for any loss or damage they or their use causes. We will use reasonable efforts to include in the applicable Deliverable any Third Party Materials contemplated in the Statement of Work or approved by you in writing, but we have no responsibility for any such Third Party Materials, of for any loss, damage or claim you may suffer from their inclusion in a Deliverable.

    3. Except for direct damages neither party shall be liable to the other for any damages whatsoever (including without limitation loss of profits or other economic loss, or any indirect, exemplary, incidental, special or consequential damages, even if it has been advised of the possibility of such damages). Other than liability for unpaid amounts for Services, in no event shall either party’s liability for damages for any Services exceed, in the aggregate, the total fees paid by Client to WWS for the Services in the 3 months immediately preceding the event which caused the damage or injury. The exclusions and limitations in this Section 8.3 shall apply regardless of whether any action is brought in contract or in tort, including breach of warranty, negligence and strict liability, or fundamental breach and/or failure of essential purpose of the Agreement or of any remedy contained herein, and shall survive the expiration, termination or repudiation of the Agreement, but shall not apply to indemnification under the Agreement, to breaches of Article 7, or to fraud, deliberately wrongful conduct, or gross negligence.

    4. WWS shall defend or settle at its own expense any and all suits, actions or claims against you alleging that your use of the Services or a Deliverable in the manner contemplated by the Agreement infringes any copyright, trade-mark or trade secret in Canada or the United States of America, provided that we are notified promptly in writing of such claim, have the exclusive right to control such defense or settlement and, at our request and expense, are given authority and assistance by you reasonably required for such defense. We will pay any settlement amount, or any damages and costs finally awarded, in any such suit, action, or claim. If any part of a Deliverable is, or in our opinion is likely to become, the subject of such a suit, action or claim, we at our option may: (i) and at no expense to you obtain for you from all persons who claim an interest in the Deliverable, the right to allow you to use it as contemplated by the Agreement; or (ii) and at no expense to you substitute non-infringing equivalent materials, or (iii) purchase the Deliverable by refunding to you all amounts paid by you to us for the Deliverable. Nothing in this Article shall require us to indemnify you for any matter arising from any of: (i) any modifications made by you; (ii) any Default by you; (iii) the combination of a Deliverable by you or us at your request with other software, equipment, systems or process; or (iv) the Client Materials or Third-Party Materials. For clarity, unless we agree to the contrary in writing, we have no responsibility or liability under an Agreement or otherwise to you for any third party claims of infringement of patent rights in relation to a Deliverable or the Services or other damages you might suffer as a result thereof.

    5. Client shall defend or settle at its own expense any and all suits, actions or claims against WWS alleging that (i) any part of the Client Materials; or (ii) the use of the Client Materials by WWS in the manner contemplated by the Agreement; infringes any copyright, trade-mark or trade secret in Canada or the United States of America, provided that Client is notified promptly in writing of such claim, has the exclusive right to control such defense or settlement and, at its request and expense, is given authority and assistance by WWS reasonably required for such defense. Client will pay any settlement amount, or any damages and costs finally awarded, in any such suit, action, or claim.



  1. GENERAL

    1. Neither you nor we shall, during the Term and for twelve (12) months after its expiry or termination for any reason, without the other’s prior written consent, solicit for hire any of the other’s employees or contractors. This provision shall not restrict the right of either party (1) to solicit or recruit generally in the media, and (2) to hire, without the prior written consent of the other party, any personnel of the other party who answers any advertisement or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the hiring party.

    2. During the Term we will not perform, for any customer that is directly competitive with your business, any services that are competitive with the Services that we are then providing to you under an active Statement of Work. This obligation is restricted to the business and industry description and the region described in the Statement of Work. For clarity, we are at all times free to provide any services to any customer outside of the region, and to any business not included in the business and industry description, set forth in the Statement of Work for these purposes.

    3. Neither of us may assign our rights and obligations under the Agreement without the prior written consent of the other, provided that each of us may assign our rights under this Agreement in connection with the purchase of all or substantially all of our assets.

    4. We shall be entitled to use your name, website screenshot and 2D/3D video on our website and general sales collateral for the sole purpose of identifying you as a client of ours.

    5. Neither party shall be liable to the other for any delay or failure to perform due to fire, flood, earthquake, acts of God, acts of war, riots, civil disorder, strikes, lock-outs or labor disruptions, the failure of telecommunications systems or any other cause whether similar or dissimilar beyond its reasonable control (a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance of those of its obligations pursuant to the Agreement affected by the Force Majeure Event only for so long as such Force Majeure Event continues and such party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay.

    6. Notices and other communications required or permitted under the Agreement shall be in writing and addressed to the parties at the addresses shown on the Statement of Work. Notices shall be sent by delivery (written receipt required) or by facsimile transmission (machine confirmation to be retained by sender) and the party sending such notice shall telephone or email to confirm receipt. Routine operational notices may be sent by email to the email address routinely used by the parties in their communications with each other. Either party may change its address or facsimile number for notification purposes by giving the other party notice of the new address or facsimile number and the date upon which it will become effective. A communication shall be deemed to have been received as of the next business day following its transmission by facsimile if transmitted after 4 p.m. Eastern Time.

    7. Except as expressly set out herein, nothing contained in the Agreement shall create or imply any WWS relationship between the parties, nor shall the Agreement be deemed to constitute a joint venture or partnership between the parties.

    8. If any provision of the Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, then the remaining provisions of the Agreement, or the application of such provisions to persons or circumstances other than those as to which they are invalid or unenforceable, shall not be affected, and each such provision shall be valid and enforceable to the extent granted by law. The Agreement constitutes the entire agreement between the parties relating to the Services, and may not be amended except with the written agreement of both parties. Sections 5.5, 7, 8 and 9 shall survive any termination or expiry of the Agreement.

    9. The Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. The courts situate in the City of Toronto shall have exclusive jurisdiction over all disputes. The parties agree that jurisdiction and venue in such courts is appropriate and each irrevocably attorns to the jurisdiction of such courts.

    10. The parties have requested that the Agreement and all documents contemplated thereby or relating thereto be drawn up in the English language. Les parties ont requis que cette Convention ainsi que tous les documents qui y sont envisagés ou qui s’y rapportent soient rédigés en langue anglaise.