The following terms will have the following meanings:
"The Client" refers to the organization that you are representing and viewing and accepting the terms and conditions on behalf of;
"The Client IP" means any intellectual, industrial and other property, including, without limitation, trade-marks, copyright, design rights, know-how and patents that The Client has created or acquired, or has rights in that is related to the The Client Property;
"The Client Property" means material, which may include data, software, images, provided to Saltmedia for creation and implementation of the Website;
"Change Order" means a Change Request approved as described in the Change Management Process section;
"Change Request" means a Change Request initiated as described in the Change Management Process section;
"Saltmedia IP" means various intellectual, industrial and other property, including, without limitation, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems that Saltmedia has created or acquired, or has rights in, or that Saltmedia may employ, provide, modify, create, or acquire or otherwise obtain rights in, in connection with the Services and the Website.
"Deliverables" means those items identified as deliverables in the Proposal and Statement of Work;
"Documentation" means written material related to operating and using the Website in sufficient detail to enable The Client's employees to operate, use, maintain, and support and the Website without assistance from Saltmedia;
"License Term" means the Term of the License as set out in Section [X];
"Services" means the procurement and supply of any supplies, materials, equipment, rights, interests, services, labour or other work and materials necessary to be performed or supplied for the Website in accordance with the terms of this Agreement;
"Website" means the website to be developed pursuant to the project;
REPORTING AND OPERATIONS
Services. Saltmedia shall supply all resources, facilities, labour and supervision, management, services, equipment, materials, drawings, technical data, technical assistance, inspection and quality assurance procedures and planning to provide the Deliverables and Services hereunder. Saltmedia services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, The Client.
Saltmedia Obligations. Saltmedia shall perform all of its obligations hereunder in a diligent, professional and efficient manner.
Personnel. Either Party may request the removal and replacement of any assigned personnel that do not, in that Party’s reasonable opinion, maintain the standard required to successfully perform this Agreement.
Saltmedia hereby grants to The Client, and The Client hereby accepts, a transferable, royalty-free nonexclusive license to use the Saltmedia IP incorporated in the Deliverables.
The Client hereby grants to Saltmedia, and Saltmedia hereby accepts, a transferable, royalty-free nonexclusive license to use IP while performing the Services and as incorporated in the Deliverables.
Saltmedia shall install all of the components of the Website, including the final form of any customized computer programs, data and databases. Saltmedia shall deliver to The Client copies of all Documentation. The Client shall have the right to reproduce all Documentation supplied by Saltmedia under this Agreement, provided that such reproduction shall be solely for use by The Client.
To the extent that Saltmedia utilizes any Saltmedia IP or other Saltmedia property in connection with the performance of the Services, the Website or the Deliverables, Saltmedia shall retain all right, title and interest in and to such property and, except for the licence expressly granted herein, The Client shall acquire no right or interest in such property.
The Client IP remains the property of The Client, subject to the license granted to Saltmedia herein.
Maintenance and support services will be provided by Saltmedia to The Client for the Website as requested by The Client on a time and materials basis.
No unauthorized computer program, functionality, routine, data, resources or capabilities shall be introduced to any computer program or system of The Client except as authorized in writing by The Client. Without limiting the generality of the foregoing, Saltmedia shall not permit and shall prevent the inclusion by Saltmedia personnel of any computer virus program, Trojan horse program, worm program or other unauthorized computer program into the Software or any part thereof or into the data, databases, computer programs, computer resources or computer systems of The Client in the course of the provision of the Services.
Except as otherwise provided in this Agreement, the risk of loss or damage in respect of the Deliverables and the Software shall remain with Saltmedia until delivery to and installation of the Deliverables on The Client systems
The Client is purchasing Saltmedia Services under this Agreement for the purchase price outlined in the Proposal and Statement of Work. Said purchase price shall be paid to Saltmedia with the down payment or setup fee due within thirty (30) days upon execution of this agreement. Each payment thereafter shall be invoiced in the calendar month following Service delivery with payment expected within thirty (30) days.
CHARGES FOR SERVICE DELIVERY
Services shall be charged to The Client in accordance with the terms and conditions as outlined in the Proposal and Statement of Work.
Any supplemental Services provided by Saltmedia which are outside the terms of this Agreement shall be charged to The Client as an additional charge in accordance with the terms and conditions as outlined in the Proposal and Statement of Work. Any additional billing charges will be invoiced each calendar month following Service delivery, with payment expected within thirty (30) days, unless otherwise specified by Saltmedia.
The Client shall, in addition to the other amounts payable under this Agreement, pay all sales and other taxes, federal, provincial, or otherwise, however designated, which are levied or imposed by reason of the Services provided pursuant to this Agreement. Without limiting the foregoing, The Client shall promptly pay to Saltmedia an amount equal to any such taxes actually paid or required to be collected or paid by Saltmedia.
Saltmedia reserves the right to refuse or suspend Services provided under this Agreement or otherwise in the event The Client has failed to pay any invoice within sixty (60) days of said invoice date, whether it be an invoice for Services provided under this Agreement or otherwise.
CHANGE MANAGEMENT PROCESS
Any proposed changes to the design, development and implementation of the Website, the Deliverables or Services, or any other aspect of this Agreement, must be determined and approved as described below. (a) The party proposing a change shall provide to the other party a written Change Request describing in detail the proposed change and including an estimate of the impact on the Services, the project timeline, the deliverables, and the cost. (b) The terms of any Change Request shall only be effective on the approval, determined reasonably, of both parties. (c) Upon receipt of approval of the Change Request: (i) such Change Request shall be deemed to be a Change Order for the purposes of this Agreement; (ii) the applicable parts of this Agreement shall be deemed amended to the extent reflected in such Change Order; (iii) the Change Order shall form part of this Agreement; and (iv) the Parties shall, to the extent applicable, prepare an appropriately revised project timeline.
The charges for Services of Saltmedia required for any Change Order which are not within the original Project shall be at $90/hour.
OBLIGATIONS OF The Client
The Client shall: (a) supply Saltmedia with timely access to and use of The Client Property for the delivery of the Services; (b) promptly notify Saltmedia of any issues, concerns or disputes with respect to the Services.
The Client agrees to act reasonably and to reasonably cooperate with Saltmedia in the performance by Saltmedia of this Agreement. The Client will respond with reasonable promptness to all of Saltmedia' requests for reviews and approvals in relation to the supply of Deliverables and the Website. The Client shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Saltmedia hereunder. The Client acknowledges and agrees that Saltmedia's performance is dependent on The Client’s timely and effective satisfaction of The Client’s responsibilities under this Agreement. Saltmedia shall be entitled to rely on all decisions and approvals of The Client.
LIABILITY AND INDEMNIFICATION
Indemnity Against Third Party Claims and Direct Costs
Notwithstanding any other provision of this Agreement, The Client shall indemnify and save harmless Saltmedia, its directors, officers, employees and agents (the "Indemnitees") from and against any and all liabilities, claims, suits, actions or proceedings which may be brought or made against Saltmedia or the Indemnitees or which Saltmedia or the Indemnitees may pay or incur as a result of or in connection with any claims that The Client Property infringes the intellectual property rights, including trade secrets, copyright or patents, of another party.
Saltmedia shall give written notice to The Client of any claim, action, suit or proceeding referred to above and Saltmedia shall, conduct, at its own expense the defence of any such claim, action, suit or proceeding and any negotiations for settlement of the same. The Client shall give notice to Saltmedia of all stages involved in any such claim, action, suit or proceeding and shall consult with Saltmedia where any step therein may have an adverse effect on Saltmedia. The Client shall not agree to any settlement which may result in Saltmedia incurring any financial or other liability without written consent of Saltmedia.
Limitation on Liability
Excluding the Indemnity granted above, each party agrees that the other party, its affiliates, agents and subcontractors, and each of their officers, directors, partners, principals or other personnel shall not be liable for any actions, damages, claims, liabilities, costs, expenses, or losses in any way arising out of or relating to the Services for an aggregate amount in excess of ten thousand ($10,000.00) dollars.
In no event shall either party, its contracted affiliates, affiliates, agents or subcontractors or any of their officers, directors, partners, principals or other personnel be liable for consequential, special, indirect, incidental, punitive or exemplary damages, costs, expenses, or losses (including, without limitation, loss of revenues, profits, goodwill or failure to realize expected savings). The provisions of this paragraph shall apply regardless of the form of action, damage, claim, liability, cost, expense, or loss, whether in contract, statute, tort (including, without limitation, negligence), or otherwise. Neither party shall apply for, nor otherwise request, any award of punitive or exemplary damages against the other party.