These TERMS OF SERVICE (the “Agreement”) govern our provision of services to you (as further described herein, the “Services”) and are legally binding and enforceable as between us, 9421 - 5852 Quebec Inc., doing business as Orizon Design, who may be referred to as the “Company” in this Agreement, and you, the individual or company receiving the services, who may be referred to as the “Client” in this Agreement. Each of us is referred to as a “Party” in this Agreement and together, the “Parties”.
By soliciting, accepting, or using the Services or clicking “accept” or “agree” to an electronic manifestation of this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are legally capable of being bound by this Agreement and not prohibited by law from soliciting, accepting, or using the Services.
We may update or revise this Agreement from time to time at our sole discretion. We may inform you of updates or revisions, but we are under no obligation to do so. You agree that you will review this Agreement periodically. You are free to decide whether or not to accept such a modified version of this Agreement, but by continuing to solicit, accept, or use the Services, you will be deemed to have accepted the revised or modified version of this Agreement. If you do not agree to this Agreement or any modified version thereof, your sole recourse is to terminate your solicitation, acceptance, and use of the Services. Except as otherwise expressly stated, any solicitation, acceptance, and use of the Services is subject to the version of this Agreement in effect at the time.
Remember, the best work comes out of great relationships. Honesty, respect and gratitude are the keys to a great relationship and therefore we have an interest in treating each other with these values at all times. As much as legal documents are important, what truly binds us is our drive to do great work with great people and to develop a relationship of mutual respect and trust.
1. Engagement & Workflow. The Client agrees to retain the Contractor, and the Contractor agrees to be retained, to perform the Services during the Term and deliver deliverables as described herein (the “Deliverables”) in accordance with this Agreement. To the extent that the Contractor presents the Services to be performed as part of a Statement of Work (“SOW”) to the Client, the Contractor agrees to provide the Services in accordance with the SOW. The Client acknowledges that the provision of the Services and the delivery of the Deliverables, will require the Client through its representatives to respond to inquiries, promptly provide certain information as reasonably requested from time to time by the Contractor, and engage in regular and informed communication with the Contractor. Accordingly, the Client agrees to make itself available to provide information as requested by the Contractor. The Client further acknowledges that the Services and the Deliverables may include either or both of: (i) Services and Deliverables related to design work performed by the Contractor (respectively “Design Services” and “Design Deliverables”); and (ii) Services and Deliverables related to implementation and development work performed by the Contractor (respectively “Implementation Services” and “Implementation Deliverables”). The Client acknowledges and agrees that the Contractor shall not be liable to the Client for losses or damages arising from, and Fees that were otherwise due and payable will remain due and payable notwithstanding, the Client’s failure to respond in a timely manner to communications and requests for feedback from the Contractor.
2. Client’s Acknowledgements. The Client hereby acknowledges and agrees: (a) the Contractor will not be required to perform any Services or develop any Deliverables unless the performance of those Services or the development of those Deliverables has been duly authorized by the Client; (b) unless otherwise indicated, any representative of the Client shall have the requisite authority and power to instruct the Contractor on the performance of the Services and the development of the Deliverables and the Contractor shall be able to rely on any such instructions; (c) Design Services include the provision of reasonable instruction on the functionality of the Design Deliverables, and for the avoidance of doubt, the Design Services do not include the provision of instruction to the Client or its employees, agents, or representatives on the technical aspects of the Contractor’s development of the Deliverables; (d) the Deliverables shall be developed, organized, and delivered in accordance with the Contractor’s expertise and standard industry practice as determined by the Contractor, and without limiting the foregoing, shall be in such a format and in such structure and organization that the Contractor deems prudent with reference to standard industry practice; (e) the Design Deliverables shall be optimized solely for the visual format proposed by the Client; (f) the Contractor will use reasonable efforts to design the Deliverables in a format that is accessible to users with visual acuity impairments, however the Contractor does not warrant or guarantee that the Deliverables will conform to or satisfy any given accessibility standards that may be applicable in the jurisdictions where the Deliverables are deployed and the Contractor expressly disclaims any liability for losses flowing from a failure to meet any such standards.
3. Review, Revisions, and Acceptance. Periodically during the Term, the Contractor shall present Deliverables to the Client for the Client’s review. The Client may request revisions to the Deliverables as presented and the Contractor shall use its best efforts to implement the revision as requested by the Client. The Client acknowledges that requested revisions may require the Contractor to extend previously communicated delivery timelines accordingly. The Client further acknowledges that revisions which purport to change an aspect of the Deliverables that had been previously presented for review or that change or add functionality are more likely to cause delivery timelines to be extended. Any Deliverables presented for review shall be deemed accepted by the Client in the absence of proposed revisions received within 10 days of presentation.
4. Implementation Services and Implementation Deliverables. The Client acknowledges that the Implementation Services are limited to the development and implementation of the Design Deliverables designed by the Contractor pursuant to this Agreement. The Client agrees to provide the Contractor with the necessary instructions and passwords to allow it to obtain remote access to the Client’s systems as the Contractor reasonably requires for the purposes performing the Implementation Services hereunder. The Client further acknowledges that the Services do not include the provision of service or support for the Deliverables and the Client will be responsible for their regular upkeep and functioning.
5. Third Party Service Providers . In the performance of the Services, the Contractor may be required to engage third-party goods or service providers. The Contractor will use reasonable efforts consistent with its expertise to retain qualified third-party goods and service providers; notwithstanding the foregoing, the Contractor provides no warranty, and disclaims all liability to the Client, with respect to the matters provided by such third-party goods and service providers. To the extent that any such third-party goods or services are provided in exchange for a fee and the fee is incurred by the Contractor, the Client agrees to reimburse the Contractor therefor in accordance with Section 6. The Client acknowledges and agrees that any fees paid to such third-party providers are subject to the terms & conditions of that provider, and accordingly the Contractor makes no guarantee as to the continued availability and pricing of any such third-party goods or services. The Contractor will use reasonable efforts to mitigate third-party provider price increases, however, in the event the provider increases the fees payable, subject to the following, the Client agrees to pay such increased fees. The Client agrees that if it declines to pay any third-party fees increases, the Client shall be solely responsible for, and the Contractor shall bear no liability for, retaining a replacement provider.
6. Payment Terms. The Client agrees that the Contractor shall render the Services in exchange for fees (the “Fees”). The Fees shall be detailed in an invoice presented to the Client. All invoices are payable within 7 days of receipt by the Client. The Fees shall be deemed to have been earned on the date payment is due in and shall be non-refundable. The Fees are exclusive of applicable sales taxes and duties, and any amounts required by law and shall be due and payable alongside the Fees. The Client agrees and acknowledges that if any portion of the Fees due and payable, or other amounts owing pursuant to this Agreement, remain outstanding for: (a) a period longer than one week, the Contractor shall have the right, in its sole discretion, to cease performing the Services for so long as the Fees remain outstanding without any liability to Client; (b) a period longer than one calendar month, the Fees shall be subject to an interest rate of three and one half percent (3.5%) compounded monthly each month (51.11% per annum) that any portion of the Fees remains due and payable, however, in the event that such interest rate exceeds the maximum allowable by law, the interest payable on Fees due and payable shall be reduced to the maximum allowable by law. In the event the Contractor is required to incur any expenses in performance of the Services, the Contractor shall notify the Client in advance of any such expenses and, upon approval from the Client, shall invoice such expenses alongside the other amounts due and payable pursuant to this Agreement.
7. Ownership and Licenses. Subject to this Section 6, the Contractor hereby assigns, as of either: (i) the date of delivery, or (ii) the date of payment of the Fees associated with that particular Deliverable, whichever is later, all right, title, and interest in the Deliverables developed pursuant to this Agreement including, without limitation, all presentations, writings, ideas, concepts, designs, text, plans, and other materials that Contractor conceives and develops pursuant to this Agreement. The Client acknowledges that a Deliverable may not be displayed publicly, used commercially, nor otherwise exploited prior to the payment of the Fees associated with that particular Deliverable. For the avoidance of doubt, the development of such deliverable constitutes a “work for hire” and shall be owned by Client upon payment of the Fees due in accordance with the preceding section. The Contractor agrees, at the Client’s request and expense, to execute such further documents as Client may reasonably request, to the extent they are necessary to give full effect to the terms of this Agreement. The Parties acknowledge that the Contractor has rights and interests in certain materials, information, trade secrets, methodologies, processes, tools, data, documents, notes, techniques, reusable objects, and templates that: (i) were developed prior to the performance of the Services and used by the Contractor in connection with the Services; (ii) are designed to perform generalized functions not specific to the particular requirements of the Client or the Deliverables; or (iii) do not contain any of Client’s Confidential Information or other information or items provided by the Client (“Legacy IP”). The Parties agree that nothing in this Agreement shall be construed as transferring or assigning to the Client any right, title, or interest in the Legacy IP. Notwithstanding the foregoing, to the extent that any aspect of the Legacy IP is necessary for the Client to exercise its rights or interest in the Deliverables, the Contractor grants to the Client a royalty-free, fully paid-up, worldwide license to use and exploit such Legacy IP solely to the extent necessary to commercially exploit its rights and interest in the Deliverables.
8. Warranty. The Contractor warrants to the Client, during the Term with respect to the Services and as of the date of the delivery for the Deliverables that: (a) the Services will be performed in a professional and workmanlike manner consistent with standard industry practice; (b) the Contractor has not knowingly incorporated in the Deliverables, excluding any materials provided by the Client incorporated therein, any materials that violate the intellectual property rights of third party; and(c) to the Contractor’s knowledge, the Contractor has the full right, power, and authority to assign to the Client the intellectual property rights assigned herein. EXCEPT AS SET FORTH IN THIS AGREEMENT, CONTRACTOR DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AND THE DELIVERABLES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE/BUG-FREE SOFTWARE/CODE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, SUITABILITY, GOVERNMENTAL ACCESSIBILITY REQUIREMENTS, COMPLETENESS OR RESULTS TO BE DERIVED FROM THE DELIVERABLES. WITHOUT LIMITING THE FOREGOING AND EXCEPT AS SET FORTH HEREIN, ALL DELIVERABLES ARE DELIVERED ON AN “AS-IS” BASIS. THE CLIENT ACKNOWLEDGES THAT, SIMILAR TO ALL SOFTWARE, THE IMPLEMENTATION DELIVERABLES MAY REQUIRE OCCASION BUG-FIXES, WHICH WILL REQUIRE FURTHER SERVICES TO BE RENDERED.
9. Confidentiality & Non-Disclosure. Each Party agrees that it shall maintain, in the strictest confidence, all Confidential Information of the other Party, only use such Confidential Information in connection with the matters contemplated by this Agreement, and only disclose such Confidential information to those of its employees, contractors, agents, and representatives with a need to know such Confidential information for the purposes of performing this Agreement. In the event a party is required to disclose Confidential Information pursuant to a judicial or other governmental order, such Party shall, to the maximum extent permitted by law or opinion of counsel, provide the other Party with prompt notice prior to any disclosure so that the Party may seek other legal remedies to maintain the confidentiality of such Confidential Information. Each Party receiving Confidential Information shall be responsible for any breach of this provision that is caused by any of its employees, affiliates, representatives or agents. The obligations of this Section shall survive termination of this Agreement for a period of 3 years. Herein, “Confidential Information” means all non-public information (at the time of disclosure) disclosed by one Party to the other Party, provided such information is marked or indicated by the disclosing party to be confidential.
10. Term & Termination. This Agreement shall commence as of the of the Contractor’s first performance of the Services to the Client and continue until terminated in accordance with its terms (the “Term”). Either Party may terminate this Agreement at any time upon 7 days’ written notice to the other Party. Either Party also may at any time terminate the Agreement immediately if the other Party commits a breach of this Agreement and such Party does not cure a breach within 5 days of written notice from the non-breaching Party of such breach. If the Client terminates this Agreement other than for the Contractor’s breach, the Client acknowledges that no rights in the Deliverables yet to be presented shall be granted pursuant to Section 6 and the Client shall promptly pay to Contractor any amounts outstanding as of the date of termination. Any provisions or clause in this Agreement that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary in this Agreement, Contractor shall retain a perfected security interest in the Deliverables until Client has made payment in full for all undisputed amounts as of the termination or expiration date.
11. Indemnification and Limitation of Liability. Client agrees to indemnify, defend and hold harmless Contractor from any and all claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising in any manner caused by Client’s (i) negligence; (ii) out of any claim that Client provided content, or any portion thereof in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Client’s representations, warranties or agreements herein. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, CONTRACTOR SHALL NOT BE LIABLE TO THE CLIENT FOR: (A) ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES; (B) ANY DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF USE OF CLIENT MATERIALS, COMPUTER HARDWARE, SOFTWARE, WEB SITE AND ANY STORED DATA; (C) CONTRIBUTION, INDEMNITY OR SET-OFF IN RESPECT OF ANY CLAIMS AGAINST CLIENT, EXCEPT AS DETAILED IN SECTION 10; (D) ANY LOSSES SUFFERED BY THE CLIENT ON ACCOUNT OF BUGS OR ERRORS IN THE DELIVERABLES OR ON ACCOUNT OF THE FUNCTIONING THEREOF; OR (E) ANY DAMAGES WHATSOEVER RELATING TO THIRD-PARTY PRODUCTS, OR MATERIALS OR ANY GOODS OR SERVICES NOT DEVELOPED OR PROVIDED BY THE CONTRACTOR, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR CONTRACTOR’S PERFORMANCE HEREUNDER, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER SOUNDING IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, CONTRACTOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE COMPENSATION PAID BY CLIENT TO THE CONTRACTOR UNDER THIS AGREEMENT. THIS PROVISION SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
12.1. Governing Law and Dispute Resolution. This Agreement and any dispute arising hereunder shall be governed by the laws of the jurisdiction of Contractor’s primary business location (the “Contractor’s Jurisdiction”), without regard to the conflicts of law provisions thereof. For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the courts located in the Contractor’s Jurisdiction. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights, nor shall a waiver granted in regards of one particular right constitute a waiver for any other right.
12.2. Force Majeure. No failure or omission by a Party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if such failure or omission shall arise from any cause or causes beyond the reasonable control of such party which cannot be overcome through that Party’s reasonable diligence, e.g., strikes, riots, war, acts of terrorism, acts of God, severe illness, invasion, fire, explosion, floods and acts of government or governmental agencies or instrumentalities.
12.3. Notices. Any notices to either Party required pursuant to this Agreement shall be made and sent (i) via US mail or a nationally recognized carrier to the other Party’s address on file; (ii) or via e-mail to the other Party’s designated representative. Each Party shall have an obligation to provide and update, as necessary, the mail and e-mail address on file for such notices. Notices sent by e-mail shall be deemed effective once sent if no error or “bounce back” has been received within twenty-four (24) hours of submission.
12.4. Video Call Recording. The Client agrees that some of the calls may be recorded by the Contractor for the purpose of performing its obligations under this Agreement and/or training and quality assurance.
12.5. Limitations period. The Parties agree that any action to enforce or interpret this Agreement must be brought within one year of the occurrence of the act or omission giving rise to the cause(s) of action. This provision shall survive the termination or expiration of this Agreement.
12.6. Reviews. Upon the Contractor request, the Client agrees to submit a review about the Contractor's performance on the platform(s) indicated by the Contractor.
12.7. Appropriate Conduct. Client and Contractor will seek to maintain a professional relationship that is free from harassment of any kind and from any other offensive or disrespectful conduct. If at any time during the term of this Agreement Contractor believes that he/she has been subjected to harassing behavior on the part of Client or Client’s staff, Contractor will notify Client immediately and demand that appropriate actions will be taken to correct the matter. In the event that the reported behavior continues following Contractor’s second notice, such behavior will constitute a breach of this Agreement and entitle Contractor to terminate this Agreement in accordance with subsection 9.3, and be paid in full for the Deliverables, without limiting any other right or remedy available to Contractor by law.
12.8. Miscellaneous. The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement. Both Parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement. The Parties agree that this Agreement may be signed by manual, facsimile, or electronic signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
12.9. Severability. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable.
12.10. Non-Solicit from the Contractor. Contractor agrees that during the period in which it is providing Services and for one year thereafter, Contractor will not encourage or solicit any employee, vendor, client or contractor of Client to leave Client for any reason.
12.11. Non-Solicit from the Client. Client agrees that during the period in which the Contractor is providing Services and for twenty-four (24) months thereafter, Client shall not, directly or indirectly, for the benefit of the Client or any third party, (i) call on or solicit any past, present or prospective vendor, employee or contractor of Contractor or its affiliates, (ii) interfere with Contractor or its affiliates’ relationship with any past, present or prospective employee, vendor, or contractor or (iii) solicit the employment or engagement of any person employed by or otherwise providing services to the Contractor or its affiliates.
12.12. Relationship of Parties. Nothing contained in this Agreement shall be construed to create a partnership, joint or co-venture, agency, or employment relationship between Contractor and Client. Both Parties agree that Contractor is, and at all times during this Agreement shall remain, an independent contractor.
12.13. Remedies Cumulative. All remedies, either under this Agreement or by law or otherwise afforded to any Party, shall be cumulative and not alternative.
12.14. Non-Disparagement . During the provision of Services and at any time thereafter, the Client agrees that it will not directly or indirectly criticize, disparage, defame or make any negative comments, statements or images about the Services and the Contractor, including its current or former affiliates, representatives, agents, suppliers, customers, independent contractors, consultants, officers, shareholders, directors and employees, whether oral or written, including statements and images made or posted via social media or on the internet, including by leaving on-line reviews. Accordingly, the Client acknowledges that the threatened or actual violation of any of the foregoing obligations will cause irreparable and continuing harm to the Contractor such that the Client agrees it shall not oppose any request by the Contractor for injunctive or other equitable relief from any court of competent jurisdiction restraining any threatened or further violation of the foregoing obligations and that any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief is hereby waived.
12.15. Open Source Materials. The Client hereby acknowledges that, in the absence of a specific request from the Client, the Contractor may rely on third-party and open-source content, and make derivative works thereof, including stock assets, royalty-free photos, icons, illustrations and any other content that is not owned or designed by the Contract, provided that such content will be helpful for the project and that the Contractor will not knowingly or intentionally include any such materials that will prevent the Client from exploiting the Deliverables as contemplated on the effective date of this Agreement.
12.16. Promotion & Attribution. Upon Client's approval, the Client grants to the Contractor a non-exclusive, perpetual, worldwide, fully paid, and assignable license and right to use and reference the Client’s name, logos, trademarks, and service marks solely in connection with the Contractor’s marketing and promotion. The Client agrees that, when asked, Client must properly identify Contractor as the creator of the Deliverables. Client does not have a proactive duty to display Contractor’s name together with the Deliverables, but Client may not seek to mislead others that the Deliverables were created by anyone other than Contractor.