Liabilities and Warranty:
EXCEPT AS OTHERWISE STATED IN THIS SECTION, THE SERVICES AND/OR PRODUCTS PROVIDED ARE ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS ANY LIABILITY TO ANY PERSON OR ENTITY FOR THE PROPER PERFORMANCE OF SERVICES. PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS COMPLETE OR FREE FROM ERROR, THAT CLIENT WILL ACHIEVE ANY PARTICULAR RANKING, POSITION, INCREASE IN PAGE VIEWS, VISITORS, OR REVENUE, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR LOSS OR DAMAGE CAUSED BY ERRORS, LOSS OF RANKINGS, OR OMISSIONS IN THE SERVICE, WHETHER SUCH ERRORS OR OMISSIONS RESULT FROM NEGLIGENCE, ACCIDENT, TECHNICAL MALFUNCTIONS, ALGORITHM CHANGES, OR OTHER CAUSE.
PROVIDER SHALL HAVE NO LIABILITY IN ANY WAY RELATED TO THIS AGREEMENT FOR ANY LOSS, LOSS OF PROFIT, REVENUE, RANKING OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, EVEN IF IT IS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. CLIENT UNDERSTANDS THE UNIQUE NATURE OF THE SERVICES OFFERED, AND THAT THIS PROVISION IS A BASIS FOR THE BARGAIN UNDER WHICH THIS CONTACT IS FORMED. PROVIDER WILL NOT BE LIABLE FOR ANY HARM OR LOSS ASSOCIATED WITH ANY DELISTING OR REDUCTION IN RANKING UNLESS DUE TO GROSS NEGLIGENCE ON ITS PART.
Client agrees to indemnify, defend, and hold harmless the Provider from any and all third party claims, losses, liabilities, costs, and expenses arising out of or related to the use of the services, or attributable to Client’s breach of this Agreement.
Warranty Period: The Provider agrees to warranty the site for up to ninety (90) days after launch of errors made by The Provider or omissions from the agreed upon scope of work. The Provider does not warranty the website from any changes after completion and launch. This may include but is not limited to: software updates, third party intervention (hacking), client changes to the site, data corruption, hosting issues, etc. Requests for additional support will be billed on a time and materials basis at The Provider’s standard hourly rate.
No party shall be liable for any delay or failure in its performance of any of the acts required by this Agreement when such delay or failure arises for reasons beyond the reasonable control of such party (but do not include financial insolvency or inability to pay). Uncontrollable Events in this contract not only include those which are normally contemplated, but also include any changes by third parties, such as search engine guidelines and changes to websites, that may influence the outcomes and strategies of this contract, of which neither party has control over or specific knowledge of the third parties actions. The time for performance of any act delayed by such causes shall be postponed for a period equal to the delay or by the magnitude of such act; provided, however, that the party so affected shall give prompt notice to the other party of such delay. The party affected, however, shall use its best efforts to avoid or remove such causes of nonperformance and to complete performance of the act delayed, whenever such causes are removed.
Governing Law and Forum; Attorney’s Fees:
The interpretation and construction of this Agreement, and all matters relating hereto, shall be governed by the laws of the Province of British Columbia. The parties hereby submit to the jurisdiction of, and waive any venue objections against, a court of competent jurisdiction in British Columbia. The prevailing party shall be awarded its reasonable attorney’s fees and costs in any lawsuit or dispute arising out of or related to this Agreement.
Client realizes the services that are being performed are unique, and that Provider will be making certain commitments of its time and resources in order to perform the services. As such, once it has begun working on the project there will be no refunds given. In addition, any nonpayment by the Client will be considered a breach of this Agreement and will allow the Provider to accelerate any amounts due and owing and demand such amounts due and owing within thirty (30) days of making such demand. Client understands nonpayment may lead to a negative impact on its credit, and Client will also be responsible for all attorneys’ fees and costs in collecting the amounts. The Provider may cancel this agreement with thirty (30) days of written notice.
Termination Fees: In the event of termination, Client shall pay The Provider for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.
• Parties agree to attempt to resolve any dispute by negotiation between the parties.
• In all other circumstances, the parties specifically consent to the local, provincial and federal courts located in the province of British Columbia. The parties waive any jurisdictional or venue defences available to them and further consent to service of process by mail.
• The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
Waiver; Modifications: No waiver by either party of any breach by the other party of any of the provisions of this Agreement shall be deemed a waiver of any preceding or succeeding breach of the same or any other provision hereof. No such waiver shall be effective unless in writing and then only to the extent expressly set forth in writing. No modifications of this Agreement shall be effective unless in writing and signed by both parties. The type of Services offered or their scope may be enlarged however any amendments must be in writing, and explicitly acknowledged as an amendment to the scope of work, with such acknowledgment done via signature.
In the absence of a clear definition in this contract, a common sense, commercial interpretation will be deemed as a suitable representation. This agreement may be modified by mutual consent.