Statement of Work (SOW) – 161026.i 

 Approved SOW along with the Terms and Conditions, make up the service agreement (the “Agreement”).

Parties: 

– UM Creatives Inc. (“Agency” or “We”)
100 Leeward Glenway, Toronto ON M3C 2Z1
legal@umcreatives.com

– CLIENT (“Client” or “You”)

 This Agreement comprises the entire understanding of the parties and supersedes all prior agreement and understandings.

 Definitions & Interpretation
a) Client Content – all materials, information, photography, writings and other creative content provided by the Client for use in the preparation of and/or incorporation in the Deliverables.
b) Third Party Materials – works that are incorporated into the Final Deliverables, but not created by Agency or owned by Client. Third Party Materials includes, for example, stock photography or illustration.
c) Preliminary Works – all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Agency and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
d) Deliverables – the services and work product specified in the SOW to be delivered by Agency to Client, in the form and media specified in the Proposal.
e) Final Deliverables – the final versions of Deliverables provided by Agency and accepted by Client.
f) Governing Law. This Agreement will be governed by the Ontario Canada Law without regard to its conflict or choice of law rules.
g) Design Terminology: Any design terminology in the SOW is defined according to standard design industry usage. Any dispute as to the meaning or scope of design terminology will be determined in good faith by Agency.
h) IF / THEN Construction. Use of capitalized “IF:” and “THEN:” in a sentence is intended only enhance readability. It has no special meaning apart from its lower case meaning.
i) Modification & Waiver. Any modification of this Agreement must be in writing. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
j) Severability. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will remain in full force and effect.
k) Headings. Section headings are provided for convenience only and do not affect the meaning of any terms.
l) All transaction and amount of money mentioned are in Canadian Dollars unless mentioned otherwise in SOW.

 

Authorization
Client is appointing Agency as an independent Advertising Agency. The Client authorizes Agency to publicize their completed work to Web search engines, Print Media, Electronic Media and other Web directories and indexes, as well as on Web-based portfolio & Social Media sites.

General Terms
a) Work Hours/Days: This agreement assumes work will be completed within the standard work week (Monday through Friday, 9 a.m. to 5 p.m. EST). Agency is closed on all major holidays.
b) Schedule: The work outlined in the SOW will be turned around within a reasonable, non-rush schedule to be determined, where possible, and mutually agreed upon at the start of each project. Late or weekend hours incurred to accommodate additional compressed deadlines, if needed, will be negotiated separately. Our schedules assume timely review and response by Agency of all deliverables.
c) Agency’s representative & Client’s representative has full authority to provide and obtain all necessary information and approvals throughout this project.
d) Client and/or Client’s subcontractors will provide accurate, complete and timely information and materials to the Agency. Client guarantees that they have all the necessary rights and ownership in such materials to permit Agency to use them for the project.
e) Work will not commence until the signed SOW has been received.
f) Client will approve and proofread all final designs, type, press proofs and test sites. Agency will make all efforts to ensure that no information is misrepresented. However, Client assumes all responsibility for content. Client’s approval of all tangible materials and artwork will be assumed after the work has been submitted to the Client for review.
g) In order to avoid errors, text changes and corrections will not be taken over the telephone and must be provided electronically (email or other electronic media).
h) Agency can use samples or photographs of the work created under this contract and the name of Client for publications, exhibition, competition and other promotional purposes (such as website) once the project has been made public.
i) The following credit will be mentioned on all publicity/promotion of this project and/or our relationship, including, but not limited to, awards, competitions, press releases, etc.: (List required credit here, i.e., Design: UM Creatives
j) All payments received are not refundable in the event the project or the relationship is terminated for any reason. If any part of the project is delayed for longer than 30 days, Agency will bill for work completed.
k) Agency reserves the right to suspend work and/or withhold issuing any project documents if invoice payments are not received within a reasonable period of time from invoice date.
l) Agency agrees to store all final electronic files created for Client for a maximum of six months.
m) Agency will charge CAD$90/image to retrieve/transfer any elements of our electronic files from archive at the request of Client, providing related usage rights have been negotiated.
n) If Client has specific requirements for how project files must be prepared, Client must communicate this, in writing, to Agency before the project begins.

 Graphics

Graphic Design:
a) Agency will create, capture or receive from the Client all the graphic elements necessary to complete the Client’s project except where otherwise noted. This includes creation / redesign of Corporate Identity (logo), ancillary images, animated graphics, photography, Creative designs including, but not limited to website, Print advertisements and banner advertisements.
b) Copy for work must be supplied by the Client via Google Docs or email attachment.
c) Photos and other misc. graphic images must be supplied by Client. All images used within all design work, other than where noted, are to be considered placeholders and are not to be considered legally owned by the Client or the Agency. If used, attribution will be required at the expense of the Client.
d) Agency prides in providing excellent customer service. To that end, we encourage input from the Client during the design process.
e) Client must supply all materials and information required by us to complete the work in accordance with any agreed specification. Such materials may include, but are not limited to, photographs, written copy, logos and other printed material. Where there is any delay in supplying these materials to Agency which leads to a delay in the completion of work, Agency have the right to extend any previously agreed deadlines by a reasonable amount.
f) Where Client fail to supply materials, and that prevents the progress of the work, Agency will invoice client for any part or parts of the work already completed.
g) Agency offer Client the opportunity to make revisions to the design. However, agency have the right to limit the number of design proposals to a reasonable amount and may charge for additional designs if client make a change to the original design specification.
h) Design and development phase are flexible and allows certain variations to the original specification. However, any major deviation from the specification will be charged at the rate of $75.00 per hour.
i) Any time frames or estimates that Agency give are contingent upon Client’s full co-operation. During development there is a certain amount of feedback required in order to progress to subsequent phases. It is highly recommended that a single point of contact be appointed from Client’s side and be made available on a daily basis in order to expedite the feedback process.

Logo:
a) Within 9 business days of receiving Client’s company info and initial deposit Agency will create logo concepts as per the package of client’s choice. Agency will place these logos on secured web page for Client to view for 5 days.
b) After the final logo design is approved, Logo design will be delivered in digital format of Cleint’s choice (.PNG, .GIF, .PDF, .AI., .EPS, and/or .JPEG graphics file formats)
c) Agency affirm that all the Logo Designs are original and that Agency own the rights granted under this agreement, and that the rights granted do not conflict any other agreement.
d) Logo Design belongs to Agency until paid in full. In the event of termination of this Agreement Agency owns the Logo and has the right to complete, exhibit, and/or sell the Logo Design Agency also owns all the logo design concepts created and presented to client before the final logo design.
e) After the final payment Client have the right to use the Logo Design in all media useful for business promotion and that Agency reserves the right to display the logo for business promotional use (example Agency’s website).
f) Agency also has the permission to use Clients full name, business address, and/or website address, for testimonial purposes on website, or other business related media.
g) Client will not alter the Final Logo Design in anyway except to change its size for printing or digital display. Client will consult Agency first, and will be allowed the first option to make alterations when possible. Agency will require additional payment to make these alterations.
h) Client have the right to terminate this Agreement if, Agency fails to complete the Logo within 25 days of the signing the agreement. Agency will return half the logo fee.

Website

Design:
a) Agency understands, however, that the Client may request significant design changes to pages that have already built to the Client’s specification. To that end, please note that our agreement does not include a provision for significant page modification or creation of additional pages in excess of our agreed page maximum. If significant page modification is requested after a page has been built to the Client’s specification, we must count it as an additional page.
b) Some examples of significant page modification at the request of the Client include but not limited to:
i. Designing a new layout or layer structure to accommodate a substantial redesign at the Client’s request.
ii. Recreating or significantly modifying the logo and or graphics at the Client’s request.
iii. Replacing more than 50% of the text to any given page at the Client’s request.
iv. Creating a new navigation structure or changing the graphics at the Client’s request.
c) Clients who anticipate frequently changing the look during the design process and desire to be intricately involved design of each page are encouraged to negotiate an agreement which exceeds the page maximum. If significant page modification is requested by the Client after the page maximum has been reached a change Request with estimated costs will be submitted for Client approval prior to changes being done.
d) Moderate changes, however, will always be covered during our design.
e) Some Clients will desire to independently edit or update their web pages after completion of the site. Note however, the Agency is not responsible for any damage created by the Client or agent of the Client. Any repairs required will be assessed at an hourly rate of CAD$ 90/hour [1-hour minimum charge].
f) Client and/or Client’s subcontractors will provide accurate, complete and timely information and materials to Agency. Client guarantees that they have all the necessary rights and ownership in such materials to permit Agency to use them for the project.
g) Client will approve and proofread all final designs, type, press proofs and test sites. Agency will make all efforts to ensure that no information is misrepresented. However, Client assumes all responsibility for content. Client’s approval of all tangible materials and artwork will be assumed after the work has been submitted to the Client for review.
h) In order to avoid errors, text changes and corrections will not be taken over the telephone and must be provided electronically.
i) Agency can use samples or photographs of the work created under this agreement and the name of Client for publications, exhibition, competition and other promotional purposes (such as website) once the project has been made public. 

Search Engine Optimization:
a) Agency encourages all commercial Clients to obtain advanced Search Engine Optimization and Site Promotion services. Agency will optimize the Client’s project with appropriate titles, keywords, descriptions and text and thereafter submit the Client’s project to each of the major search engines and directories.
b) Agency also offers advanced search engine optimization and site promotion services for an additional fee.

Work Schedule and Completion Date:
a) Agency will submit a first mock-up draft of project no later than 20 working days after UM Creatives receives the signed SOW along with down payment and initial direction from the Client. The Client will provide all data needed to complete project, including text, company logo, and photos. Upon completion of this stage, the Client will be asked to confirm acceptance for the basic design via e-mail. Once this acceptance is received from the Client, the work necessary to complete the project will continue.
b) Upon completion of the project, an e-mail or letter and invoice will be sent to the Client advising the Client that the work has been completed. The Client will supply written approval by initialing each page in the project via email. After contract has been paid in full, site will then be uploaded to the Client’s hosting company.

Maintenance Grace Period:
a) This agreement includes minor project maintenance over a fifteen days [15] period (unless stated otherwise on SOW). This included updating links and making minor changes to a sentence or paragraph. It does not include removing nearly all the text from a page and replacing it with new text. If the Client or an agent other than Agency attempts to update the Client’s project, time to repair it will be assessed at the hourly rate of CAD$ 90 and is not included as part of the updating time. The 15 days maintenance period (unless stated otherwise on SOW) commences upon the date the Client signs this contract.
b) Changes requested by the Client beyond those limits will be billed at the hourly rate of CAD$ 75. This rate shall also apply toward additional work authorized beyond the maximums specified above for such services as: general Internet orientation education, marketing consulting, web page design, editing, modifying product pages and databases in an online store, and art, photo, graphics services, and helping Clients learn how to use their own web page editor.

Extended Maintenance Contracts:
a) Terms for Maintenance Contracts will use one of two methods, unless stated and agreed otherwise in the SOW.
i. The Monthly “Flat Rate” Maintenance Contract, payable each month, allowing up to 2 hours of changes per month, including new pages and store product changes. The “Flat Rate” Agreement is payable each month, whether the time is used or not. Changes requested, which go beyond the 2-hour limit, are chargeable at the hourly rate of CAD$ 100.
ii. The “As Needed” Maintenance Contract is a monthly chargeable agreement, higher than the “Flat Rate”, but offering cost savings on projects with little to no changes. Charges incur when Client requests a change. 1-hour minimum charge.

Additional Expenses:
a) The Client agrees to reimburse the Agency for any critical Client requested expenses necessary for the completion of the project. Examples would be:
I. Purchase of specific fonts at the Client’s request,
II. Purchase of specific photography at the Client’s request.
III. Purchase of specific software at the Client’s request.

Copyrights and Trademarks
a) The Client represents to Agency and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Agency for inclusion in web pages or any other project are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Agency and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.

Assignment of Project
a) Agency reserves the right to assign certain subcontractors to any project to insure the right fit for the job as well as on-time completion. UM Creatives warrants all work completed by subcontractors for this project.

Delays
a) Agency shall use all reasonable efforts to meet the Work Plan and Milestones delivery schedule. Agency may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed 10 days.
b) Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.
c) Any delay caused be conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.

Evaluation & Acceptance
a) Agency will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to Client.
b) Client shall, within 5 business days after receiving each Deliverable, notify Agency in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. Agency shall, within 10 business days of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within 5 business days of receiving a revised Deliverable, either approve the corrected version or make further changes. If after 3 corrections by Agency, Client finds the Deliverables are not acceptable, Client may terminate this agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.
c) On completion of the work Client will be notified and have the opportunity to review it. Client must notify Agency in writing of any unsatisfactory points within 5 days of such notification. Any of the work which has not been reported in writing to the Agency as unsatisfactory within the 5-day review period will be deemed to have been approved. Once approved, or deemed approved, work cannot subsequently be rejected and the contract will be deemed to have been completed and the 50% balance of the project price will become due.
d) If Client reject any of the Agency’s work within the 5 days’ review period, or not approve subsequent work performed by Agency to remedy any points recorded as being unsatisfactory, and Agency, acting reasonably, consider that Client have been unreasonable in any rejection of the work, Agency can elect to treat this contract as at an end and take measures to recover payment for the completed work.

Client Responsibilities
a) Client acknowledges that it is responsible for performing the following in a reasonable and timely manner:
i. Provide Client Content in a form suitable for use in the Deliverables without further preparation by Agency, unless otherwise specified in the Project Proposal;
ii. Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable;
iii. Make decisions regarding other parties.

Accreditation & Promotion
a) Agency shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Agency in the Deliverables on each page of the Final Deliverables.
b) UM Creatives retains the right to reproduce, publish and display the Deliverables in Agency’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
c) Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.

Rights To Final Art
a) License: Agency grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables.
Rights To Deliverables Other Than Final Art
a) Client Content: Client Content is the exclusive property of the Client. Client grants Agency a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Agency’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
b) Preliminary Works. Agency retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Agency within thirty (30) days of completion of the Services.
c) Agency Tools. All Agency Tools are and shall remain the exclusive property of UM Creatives. UM Creatives grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Agency Tools solely to the extent necessary with the Final Deliverables for the Project.

Support Services
a) Maintenance Period. After the Warranty Period expires and at Client’s option, UM Creatives will provide Support Services for the following first month for Agency hourly fees of CAD$ 75 per hour.
b) No Enhancements: The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.

Enhancements
a) During the Maintenance Period, Client may request that Agency develop enhancements to the Deliverables. Agency shall exercise commercially reasonable efforts to prioritize Agency’s resources to create such enhancements. Client understands Agency may have preexisting obligations that may delay requested enhancements. Agency shall provide any enhancements shall be provided on a time and materials basis at Agency’s standard rate.
b) Alteration of any Deliverable is prohibited without the express permission of the Agency. Agency will be given the first opportunity to make the required alterations. Unauthorized alterations shall constitute additional use and will be billed accordingly.

Approval of Work
a) Within five business days following receipt of any deliverables, the Client will provide Agency with either
i. written approval and acceptance of such deliverable (which will not be unreasonably withheld), or
ii. a written list of reasonable modification guidelines that will bring the deliverables into compliance with the SOW. Each deliverable hereunder will be deemed accepted by the Client if, within five business days of its delivery to the Client, the Client does not receive the foregoing written notice.
b) The Client’s written approval of any deliverables, materials, plans or other Work created or produced by the Agency in the course of the provision of the Services, or any cost estimate, will constitute the Agency’s authority to purchase, publish, and make contracts for talent, space, time and other facilities and otherwise to do any other act or thing which the Agency considers it reasonable to do in order to carry out its obligations under this Agreement or any Statement of Work.
c) The Agency will not be obliged to commit to any expenditure on behalf of the Client without first receiving written confirmation of the Client’s instructions and the Agency will not be responsible for the consequences of any delay on the part of the Client in providing such written confirmation. 

Delivery
a) The Agency will use commercially reasonable efforts to perform the Services within the schedule outlined in the Statement of Work. Agency’s delivery timeframe depends upon the Client’s prompt response to any questions or requests for Client materials.
b) The Agency may hire third party service providers (“Design Agents”) as independent contractors. The Agency is responsible for Design Agents’ compliance with this Agreement.
c) The Agency shall use commercially reasonable efforts to test Deliverables before providing them to the Client.
d) If the project includes XHTML or HTML markup and CSS templates, the Agency will use HTML5 markup and CSS3 for styling. The Agency will test the markup and CSS in current versions of Safari, Chrome, Firefox, and Internet Explorer. The Agency will not test websites in older browsers, unless specifically identified in the SOW.
e) The Client shall promptly review all deliverables, and must notify the Agency of any failure to conform to the SOW within 5 business days of receipt. If Agency does not receive a timely notification, the Deliverable will be deemed accepted. The Client’s notification must clearly identify the problems with the Deliverable.
f) Client must promptly:
I. coordinate any decision-making activities with 3rd parties;
II. provide Client Content in a form suitable for reproduction or incorporation into the Deliverables; and
III. proofread deliverables.

Client Rights in Deliverables.
a) Upon completion of the Services and full payment of all invoices, the Agency shall assign IP rights to the Client. These IP rights include all ownership rights, including any copyrights, in any artwork, designs and software created by the Agency and incorporated into a Final Deliverable, except as otherwise noted in this Agreement.

Agency Rights in Deliverables.
a) Agency retains the rights to all Preliminary Works that are not incorporated into a Final Deliverable.
b) Agency may display the Deliverables in the Agency’s portfolios and websites, and in galleries, design periodicals and other exhibits for the purposes of professional recognition. Likewise, the Agency may publicly describe its role in the Project.
c) If the Agency incorporates credits into the Deliverables, any use of the Deliverables shall continue to bear the credits in the same form, size and location. Agency credits will not be incorporated into any logo designed for the Client.
d) The Agency may incorporate certain Agency Tools into the Deliverables.
“Agency Tools” means all design tools developed or utilized by Agency in performing the Services, including without limitation: pre-existing and newly developed software, Web authoring tools, type fonts, and application tools. In the event Agency Tools are incorporated into any Final Deliverable, then Agency grants Client a royalty-free, perpetual, worldwide, non-exclusive license to use the Agency Tools to the extent necessary to use the Final Deliverables. Agency retains all other rights in the Agency Tools.

Change Request
a) A “Change Request” is any request for work outside the scope of the Statement of Work.
b) If such a request is made, the Agency will notify the Client that it is a Change Request. If the Client still wants to proceed with the Change Request, the Agency will bill the work on a time and materials basis, at the Agency’s standard hourly rate of CAD $75/hr. The Agency may also extend its delivery schedule.
c) If the Change Request alters the scope of the project by more than 20%, the Agency may submit a new proposal to the Client.

Domain Name & Hosting
Web Hosting:
a) The Client agrees to select a web hosting service that allows full access to the project directory via FTP. The Client further understands that if the web hosting service’s operating system is not a standards-compliant system, software may not work and providing a substitute may incur additional charges.

Warranties and Liability:
a) The Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or Agency.
b) Abusive and unethical materials and uses include, but are not limited to: pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, illegal activity, spamming, advocacy of illegal activity, and any infringement of privacy.
c) The Client hereby agrees to indemnify and hold harmless UM Creatives from any claim resulting from the Client’s publication of material or use of those materials.
d) It is also understood that UM Creatives will not publish information over the Internet which may be used by another party to harm another. UM Creatives will also not develop a pornography or warez project for the Client. UM Creatives reserves the right to determine what is and is not pornography.
e) UM Creatives does not warrant the functions of the site will meet Client’s expectations of site traffic or resulting business or that the operation of the web pages will be uninterrupted and / or error-free. UM Creatives will not be held responsible for occasional downtime of email or project due to line interruptions and/or other instances beyond Agency’s control.

Laws Affecting Electronic Commerce:
a) From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Client agrees that the Client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Agency and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet electronic commerce.
b) Client is responsible for complying with all relevant laws relating to e-commerce, and to the full extent permitted by law will hold harmless, protect, and defend and indemnify Agency and its subcontractors from any claim, penalty, tax, tariff loss or damage arising from Client or Clients customer’s use of Internet electronic commerce.

Ownership of domain names and web hosting
a) Agency will not supply account credentials (to Client) for domain name registration and/or web hosting that we purchased on Clients behalf when Client reimburse Agency for any expenses that we have incurred.

 

Cross browser compatibility:
a) By using current versions of well supported content management systems such as “Wordpress”, Agency endeavor to ensure that the web sites we create are compatible with all current modern web browsers such as the most recent versions of Internet Explorer, Firefox, Google Chrome and Safari. Third party extensions, where used, may not have the same level of support for all browsers. Where appropriate Agency will substitute alternative extensions or implement other solutions, on a best effort basis, where any incompatibilities are found.

Usage policy:
a) Agency reserve the right to suspend or cancel a Client’s access to any or all services provided when Agency decide that the account has been inappropriately used. In short Agency do not allow certain activities hosted on our servers:
I. No adult content (No Pornography)
II. No online gambling
III. No Spam, No unsolicited e-mailing
IV. No Warez, cracks, copyright infringement

Server abuse
a) Any attempt to undermine or cause harm to a server, or customer of Agency is strictly prohibited.
Unauthorized use of other people’s accounts or computers
a) Agency will strongly react to any use or attempted use of an Internet account or computer without the owner’s authorization. Such attempts include “internet scamming” (tricking other people into releasing their passwords), password robbery, security hole scanning etc.
b) Any unauthorized use of accounts or computers by a customer, whether or not the attacked account or computer belongs to us, will result in action against the attacker. Possible actions include warnings, account suspension or cancellation, and civil or criminal legal action, depending on the seriousness of the attack.

Abuse of Unlimited Traffic and/or Unlimited Storage
a) If one of our hosting plans offers unlimited traffic and/or unlimited storage for the client web sites, the intention is to provide a large space to serve web documents, not an offsite storage area for electronic files. All of your web pages (html) must be ‘linked’ with files (.GIF, .JPEG, etc.) stored on our server. Web sites that are found to contain either/or no html documents, a large number of unlinked files are subject to warning, suspension or cancellation at the discretion of Agency’s management. To maintain the integrity of our service the following limitations apply to such hosting plans:
I. Sites with Banners, graphics or cgi scripts running from their domain used on other domain
II. Sites with picture galleries (This is any site where 50% of the files transferred is graphics)
III. Sites offering download files or archives. (This is any site where more than 50% of the monthly traffic is from file downloads)
IV. If you do not qualify for the unlimited service, traffic will go unmonitored until you reach 2GB per month. Thereafter, extra data transfer cost of CAD$10/1GB/month will be billed to your account.
V. We will be the sole arbiter as to what constitutes a violation of this provision

CPU, Unmetered Bandwidth & Disk Usage
a. Permitted CPU and Disk Usage.
All use of hosting space provided by HostGator is subject to the terms of this Agreement and the

Acceptable Use Policy.
1. Shared hosting space may only be used for web files, active email and content of User Websites. Shared hosting space may not be used for storage (whether of media, emails, or other data), including, as offsite storage of electronic files, email or FTP hosts. HostGator expressly reserves the right to review every shared account for excessive usage of CPU, disk space and other resources that may be caused by a violation of this Agreement or the Acceptable Use Policy. HostGator may, in our sole discretion, terminate access to the Services, apply additional fees, or remove or delete User Content for those accounts that are found to be in violation of HostGator’s terms and conditions.
2. Dedicated and VPS usage is limited by the resources allocated to the specific plan that you have purchased.
b. Bandwidth Usage.
Shared servers are not limited in their bandwidth allowance. Unlimited bandwidth usage is not available for resellers, dedicated or VPS servers, which are subject to the terms of the plan you purchased and can be viewed in your control panel.

Commercial advertisements with e-mail:
a) Unsolicited commercial advertisements are not allowed in e-mail, and will likely result in account suspension or cancellation.
b) Commercial advertisements are unwelcome in most Usenet discussion groups and on most e-mail mailing lists. Inappropriate posting may result in account suspension or cancellation. See the newsgroup or mailing list’s charter for whether advertising is allowed or not. “Spamming,” or sending a message to many different off-topic newsgroups, is particularly unethical and will be treated as such.
c) Sending a message, especially an advertisement, to more than five or six recipients, is by itself spamming unless the individuals have specifically requested to be added to a mailing list on that topic. E-mail is a person-to-person medium, not a broadcast medium.

Background Running Programs:
a) In addition to these Client agrees not to run any kind of ‘server applications’. Every program/script that opens a port on the shared hosting server is considered a ‘server application’. These include but are not limited to IRC servers, IRC proxies, IRC bots. Client understands that the services are subject to immediate termination without compensation for non-compliance with the policies. Further, Client will be responsible for the full amount of any tangible and intangible damages this may cause. Agency reserves the right to change the policies from time to time to reflect the dynamic nature of the Internet. Both policies are available on-line any time or as a hard copy by request only.

Payment Policies:
a) All accounts are set up on a pre-pay basis. Setup fees may be charged for all new accounts and major account changes. All pricing is guaranteed for the term of pre-payment. Agency reserves the right to change prices at any time. Any account not brought current within a week (7 days) of e-mail notice or exceeding this time frame in any way is subject to suspension. The customer is responsible for all money owed on the account from the time it was established to the time that the customer notifies us in writing for a request for termination of services. Credit card information is stored on file and will be auto-billed on the due date of the account. Email notification will be sent to you prior to your hosting renewal date.

Cancellation:
a) We reserve the right to cancel service at any time. All fees paid in advance of cancellation will be pro-rated and paid by us if we institute our right of cancellation. Any violation of policies which results in extra costs will be billed to the customer (i.e. transfer, space etc.)
b) All of our web hosting plans are backed by a 30-day money back guarantee. If you are not completely satisfied with our services or support within the first 30 days of your contract, you will be given a full refund of the contract amount including setup fees but excluding overages. Domain Registration fees are not refundable at all. If the web hosting plan includes a free domain name registration, when cancelled an amount equal to the regular domain name registration fee will be charged. For web hosting contracts of 3 months or less, the full contract amount less any domain registration fees and overages will be refunded if we are notified within the first 30 days following activation. No refund is available after the 30th day. For web hosting contracts longer than three months, a refund equal to one half of the contract amount less any domain registration fees and overages will be given if we are notified prior to the first day of the second half of the contract term. For example, on a twelve-month contract we must receive the notice of cancellation prior to the first day of the sixth month of the contract. No refunds will be given once the second half of the contract term has begun. This policy does not apply to any additional services such as overages, additional disk space, additional pop accounts, etc. Due to security concerns, all account cancellations must be done in writing via mail or fax with a valid signature of the primary contact of the account, account name, reason for cancellation. We also accept account cancellation submitted from the registered email address of the account holder. Phone requests will not constitute acceptance of any cancellation. If payment was made by check or bank transfer, payment will be made by company check within 15 days of receipt of cancellation.

Lawful Purpose:
a) We reserve the right to refuse service to anyone. Customers may only use our servers for lawful purpose. Transmission of any material in violation of any Federal, provincial or Local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, and material protected by trade secrets. We expressly forbid anyone from using servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable, including, but not limited to, pornography, satanic materials, and any and all materials of an adult nature. The designation of any materials as such described above is left entirely to the discretion of Agency’s management.

Subcontractor
a) Agency reserves the right to assign certain subcontractors to this project to insure the right fit for the job as well as on-time completion. Agency warrants all work completed by subcontractors for this project.
b) Unless otherwise stated in SOW or agreed by the parties in writing, the Agency’s contracts with suppliers in respect of the Services shall be made in accordance with suppliers’ standard terms or such other terms as the Agency is able to negotiate with the relevant supplier.
c) The Agency shall act as principal in all such contracts, but all rights and liabilities as between the Client and the Agency shall correspond to those between the Agency and the various suppliers under such conditions, including in particular any service levels and any rights of amendment, omission and cancellation. The Agency shall use reasonable efforts to procure best commercial terms for the Client, and on the Client’s written request the Agency shall supply the Client with the relevant terms and conditions.
d) Notwithstanding the above, unless the parties agree to different arrangements in writing, the Agency shall negotiate with any talent or celebrities (if applicable) on behalf of the Client, but the Client shall contract with such suppliers directly in order to derive maximum benefit from the relationship.
e) Some Clients will desire to independently edit or update the web pages after completion of the site. Note however, the Agency is not responsible for any damage created by the Client or agent of the Client. Any repairs required will be assessed at an hourly rate of CAD$ 95/hour [1-hour minimum charge].

Non-Disclosure/Confidential Information
Confidential Information:
a) Client’s “Confidential Information” includes information that Agency should reasonably believe to be confidential. Agency’s “Confidential Information” includes the source code of any Agency Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform this Agreement.
b) Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure
c) Confidential information is that which relates to the Client’s or Agency’s research, development, trade secrets or business affairs and includes, in the case of Agency’s confidential information, concepts presented to, but not selected by the Client; it does not include information that is generally known or easily ascertainable by third parties. Agency and the Client shall mutually respect and maintain each other’s confidential information and shall use it only to perform their respective obligations hereunder. For the avoidance of doubt, confidential information does not include information which is public knowledge, was in the recipient’s possession before receipt or is independently developed by the recipient. Neither party shall solicit the other’s employees, independent contractors or consultants or engage them in any work independent the parties’ relationship under this Agreement during the term of the Agreement and for two years thereafter.

Rights and Ownership
Copyrights and Trademarks
a) The Client represents to Agency and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Agency for inclusion in any artwork or any deliverables are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Agency and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
Ownership of Completed Works
a. Copyright to the finished assembled work of web pages and graphics produced by Agency shall be vested with the Client upon final payment for the project.
b. This ownership is to include: design, photos, graphics, source code, work-up files, and text.
c. Rights to photos, graphics, computer programs are specifically not transferred to the Client, and remain the property of their respective owners. Agency and its subcontractors retain the right to display all designs as examples of their work in their respective portfolios.
Rights To Final Art
a) License: Agency grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables.
Rights To Deliverables Other Than Final Art
a) Client Content: Client Content is the exclusive property of the Client. Client grants Agency a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Agency’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
b) Preliminary Works. Agency retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Agency within thirty (30) days of completion of the Services.
c) UM Creatives Tools. All UM Creatives Tools are and shall remain the exclusive property of the Agency. Agency grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Agency Tools solely to the extent necessary with the Final Deliverables for the Project.

Payment
Payment of Fee
a) A minimum deposit of fifty percent (50%) is required to commence work.
b) Fee to Agency are due and payable on the following schedule:
I. 50% upon signing of contract
II. 50% balance upon completion of project (Unless mentioned and agreed otherwise on SOW).
c) If the total amount of this contract is less than CAD$ 400, the total amount shall be paid upon signing of contract and any additional costs incurred during development will be invoiced at the completion of the project.
d) Advertising the project to Web Search Engines and updating occur only after the final payment is made. All payments will be made in Canadian dollars.
e) Agency reserves the right to remove the project from viewing on the Internet until final payment is made. If a payment delay is anticipated, please contact Agency immediately for an alternative arrangement. In case collection proves necessary, the Client agrees to pay all fees incurred by that process. This agreement becomes effective only when signed by Agency.
f) Regardless of the place of signing of this agreement, the Client agrees that for purposes of venue, this contract was entered into in Toronto – ON and any dispute will be litigated or arbitrated in Toronto – ON, Canada (by the law of Ontario Canada).

Rush Processing
a) The agreed-upon completion date for this project is: three weeks (15 working days) from the date of received payment (unless mentioned otherwise in SOW). The Client understand that should they require earlier completion, there will be additional fee to be paid before completion.

Sole Agreement
a) The agreement contained in this Contract constitutes the sole agreement between Agency and the Client regarding this project. Any additional work not specified in this contract must be authorized by a written change order. All prices specified will be honored for 30 days after both parties sign this contract. Continued services after that time will require a new agreement.
b) This agreement constitutes the entire understanding of Agency and the Client. This agreement terminates and supersedes all prior understanding or agreements on the subject matter hereof. Any changes or modification thereto must be in writing and signed by both parties

Additional Services, Project Changes
a) Any services outside the scope of the SOW or changes to previously approved work requested by the Client shall be the subject of an additional SOW or Change of Scope to be approved in writing by both parties.

Expenses
a) Client will be notified in advance for pre-approval of any additional expenses in excess of more than ten percent (10%) of those set forth on the SOW. At Agency’s discretion, Client shall either pay such fees directly to the third-party vendor or reimburse Agency therefore upon presentation of applicable invoices. Agency shall maintain records of expenses. Where applicable, Agency will invoice Client for all fees related to acquisition of talent or talent services in advance and will only secure talent services upon receipt of all such fees from Client.

Time of Payment and Late-Payment Charges
a) In no event, will any payment under this Agreement be contingent on receipt of any monies or other compensation by the Client. For the avoidance of doubt, fees or commissions payable to Agency for media planning and buying services are in addition to, and not inclusive of, Agency’s fees for other services which may be listed in the SOW, such as design, branding, hosting, and content distribution and syndication. Delays resulting from the action or inaction of Client may result in an adjustment in fees by Agency, subject to Client approval. Each invoice hereunder is due and payable within 30 days after its invoice date. All rights of the Client herein are conditioned on Agency’s receipt of full payment. In addition, Agency may suspend performance of services and withhold delivery of materials until payment in full of all amounts due. Agency shall not be liable for any damages, losses or liabilities that may arise out of Agency’s suspension of performance and/or withholding of materials due to Client’s non-payment. Late payments shall accrue flat CAD100 late fee penalty per month. Agency shall be entitled to all of its costs of collection of amounts outstanding hereunder, including without limitation, the fees of its attorneys.

Our fees and deposits
a) A 50% deposit of the total fee payable under our proposal is due immediately upon you instructing us to proceed with the project – unless stated otherwise on the agreement. The remaining 50% shall become due when the work is completed to reasonable satisfaction but subject to the terms of the “approval of work” and “rejected work” clauses. We reserve the right not to commence any work until the deposit has been paid in full.
b) The 50% deposit is only refundable if we have not fulfilled our obligations to deliver the work required under the agreement. The deposit is not refundable if the development work has been started and you terminate the contract through no fault of ours.

Payment
a) The Agency will invoice the Client according to the Statement of Work. Client shall pay all invoices within 15 days of receipt.
b) In addition to Agency’s fees, the Client will be invoiced for Agency’s expenses. Agency’s travel and lodging expenses will be invoiced to the Client without markup. Meal expenses will not be invoiced to the Client at all. Other Expenses incurred by the Agency in performing services to the Client will be invoiced to Client at Agency’s standard mark-up of 20%. Other Expenses include, without limitation, postage, shipping, models, presentation materials, photocopies, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, software licenses, online access, Software as a Service, and hosting fees.
c) Client is responsible for paying all applicable taxes, including sales, use and value added taxes.
d) Overdue balances may be charged a monthly service fee of 1.5% (or the greatest amount allowed by law).

Indemnification
a) The Client agrees that it shall defend, indemnify, save and hold Agency harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney’s fees associated with the Agency’s development of the Client’s project. This includes liabilities asserted against Agency, its subcontractors, its agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employee or assigns.
b) The Client also agrees to defend, indemnify and hold harmless Agency against liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Client’s project. This includes infringing on the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organization, or business.
c) In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Agency may at its own expense, replace any infringing content with non-infringing content.
d) Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF UM CREATIVES ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF UM CREATIVES, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“UM CREATIVES PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF UM CREATIVES. IN NO EVENT SHALL UM CREATIVES BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY UM CREATIVES, EVEN IF UM CREATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Rights Upon Termination of Agreement
a) Agency shall transfer, assign and make available to the Client all property and materials in Agency’s possession or subject to Agency’s control that are the property of the Client, subject to payment in full of amounts due pursuant to this Agreement
b) Agency also agrees to provide reasonable cooperation in arranging for the transfer or approval of third party’s interest in all contracts, agreements and other arrangements with advertising media, suppliers, talent and others not then utilized, and all rights and claims thereto and therein, following appropriate release from the obligations therein.
c) In the event the Client terminates this contract by registered letter within 30 days, 50% of down payment will be refunded. Work completed shall be billed at the hourly rate of CAD$75 and deducted from 50% of the down payment, the balance of which shall be returned to the Client. If, at the time of the request for refund, work has been completed beyond the amount covered by the initial payment, the Client shall be liable to pay for all work completed at the hourly rate. No portion of this initial payment will be refunded unless written application is made within 30 days of signing this contract.

Default
a) In the event of any default of any material obligation by or owed by a party pursuant to this agreement, the other party may provide written notice of such default and if such default is not cured within ten (10) days of the written notice, then the non-defaulting party may terminate this Agreement.

Notices
a) Any notice required by this agreement or given in connection with it shall be in writing and given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.

Litigation
a) Any disputes arising form this contract will be litigated or arbitrated in Toronto – ON, Canada. This agreement shall be governed and construed in accordance with the laws of the Province of Ontario, Canada.

Termination
a) Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.
b) This agreement may be terminated by the mutual agreement of the parties with 30 days of termination notice.
c) Termination for Convenience: Either party may terminate this agreement at any time and for any reason on 30 days prior written notice to the other party. If Client terminates the Agreement under this section, UM Creatives shall, at Clients reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.
d) Termination Fees: In the event of termination, Client shall pay UM Creatives 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.
e) Intellectual Property: If Client terminates and on full payment of compensation, Agency grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.
f) Confidential Information: On expiration or termination of this Agreement:
i. each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and
ii. all rights and obligations regarding Confidential Information shall survive.

Dispute Resolution
a) Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.
b) Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
c) Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.

Legal Clearances and Indemnification
a) The Client is responsible for obtaining all legal clearances required for the performance of services hereunder. The Client shall indemnify, defend (at its own cost and expense) and hold Agency and its officers, employees and agents harmless from and against any and all claims, suits, demands, damages, losses and expenses arising from any breach, misrepresentation or other act or omission of the Client.

Liability of Agency
a) Agency shall not be held responsible for delays or non-performance caused by activities or factors beyond its reasonable control, including delays and non-performance caused by viruses, denial of service attacks, other acts or omissions by third parties, Internet service providers, the Client or its contractors, strikes, lockouts, work slowdowns or stoppages, accidents, fires, acts of God, terrorism, failure by the Client to timely furnish information or approve or disapprove work, or faulty performance by the Client or others, including third-party contractors hired by Agency or by Client. Agency shall not be liable for any indirect, third-party, incidental, special, consequential, exemplary or punitive damages arising out of this Agreement. Agency’s maximum liability under this Agreement shall not exceed the total fees received by it hereunder.

Lawful Purpose
a) We reserve the right to refuse service to anyone. Customers may only use our servers for lawful purpose. Transmission of any material in violation of any Federal, provincial or local regulation is prohibited. This includes, but is not limited to copyrighted material, material legally judged to be threatening or obscene, and material protected by trade secrets. We expressly forbid anyone from using servers for the propagation, distribution, housing, processing, storing, or otherwise handling in any way lewd, obscene, or pornographic material, or any other material which we deem to be objectionable, including, but not limited to, pornography, satanic materials, and any and all materials of an adult nature. The designation of any materials as such described above is left entirely to the discretion of our management.

Governing law
a) The agreement constituted by these terms and conditions and any proposal will be construed according to and is governed by the laws of Ontario Canada. Client and Agency submit to the non-exclusive jurisdiction of the courts in Ontario Canada in relation to any dispute arising under these terms and conditions or in relation to any services Agency perform for Client.