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Terms and Conditions Of Service for Hiring digitalsoul for a Web Site Design Project The purpose of these Terms and Conditions Of Service (herein referred to as TCOS) is to provide a legal framework under which digitalsoul and our customers can conduct business in regard to The customer hiring digitalsoul in the creation of a Website. The TCOS also serves to ensure that customers are using digitalsoul services in a way that does not infringe on the rights of others and Internet users-at-large, and that no customer uses digitalsoul’s services in a way that is detrimental to digitalsoul. In this document, the customer is variously referred to as "client", “customer,” “you,” “your,” and “yours.” In this document, digitalsoul is variously referred to as "digitalsoul", "us", "we", and "our". The customer agrees that by paying the initial deposit Invoice for a website project that you agree to the following terms and conditions. We also require that you mail a signed copy of this agreement to our office. Failure to mail in your signed copy DOES NOT exclude you from abiding to these Terms and Conditions as stated below. 1. Authorization. The customer is engaging digitalsoul as an independent contractor for the specific purpose of designing a World Wide Web site, or updating a World Wide Web Site, (hereinafter referred to as "Web Design Project", “design project”) to be published on the customer's account on an Internet Service Provider (ISP) or Web Hosting provider’s server, hereinafter refer to as "Hosting Service”. The customer hereby authorizes digitalsoul to access this account, and authorizes the Hosting Service to provide digitalsoul and it’s subcontractors, with "full access" to the customer's hosting account, and any other programs needed for this Web Design Project that are included as part of the customer's service agreement. 2. Development. digitalsoul makes every effort to ensure that your website is viewable by your website visitors as intended. However, digitalsoul represents and warrants that the web site we design for you will work in: Microsoft® Internet Explorer versions 5 and up. Compatibility with all other browsers is on a best effort only basis or extra charges will apply. While digitalsoul will make reasonable efforts to design a fully-functional web site, digitalsoul’s warrantee does not cover AOL, text-based browsers or requested special effects that we have advised you against. 3. Website Design Process. digitalsoul follows a design method we call “focussing”. This method is based on these stages of development in sequence: Stage1: We create a graphic file of the design Stage 2: We show you the graphic file of the design and ask for approval BEFORE moving to the next stage of development. Stage 3: This stage has two possible outcomes: 1. If in Stage 2 the design is not approved by the customer, we work on the design and start the process over at Stage 1 until you are satisfied, then we move to the next stage of development. 2. If in Stage 2 you agree to the work we have performed and you agree that we should continue with the design, we then move to Stage 4. Stage 4: We continue developing the website BASED UPON Stage 3 and convert the graphic files into a HTML web page format, create the web pages and continue designing. We communicate with the customer for further approvals. The customer agrees that if past any stage of development, that you PREVIOUSLY APPROVED, you wish to go back and make changes which cause an unexpected increase in hours earned for the design work, such work will be deemed an additional extra charge based on our hourly rate of $35/hour. digitalsoul will inform The customer of the extra charges, if such modifications are requested by you, before starting such modifications. 4. Assignment of Web Design Project. digitalsoul reserves the right, and you hereby agree, to assign subcontractors to this Web Design Project to insure that the terms of this agreement are met as well as on-time completion. 5. Copyrights and Trademarks. The customer unconditionally guarantees that any elements of text, graphics, photos, trademarks, or other items furnished to digitalsoul for inclusion in the Web Design Project are owned by the customer, or that the customer has permission from the rightful owner to use each of these elements. You agree to fully defend and indemnify and hold harmless digitalsoul of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of digitalsoul services or any portion thereof. Choice of counsel remains exclusively that of digitalsoul. 6. Web Site Maintenance. Once this website design project is completed and all fees paid the customer will be given a 90 day period of time within which the customer can request minor modifications to the site without extra charge. Minor modifications do NOT include graphic design, color changes of graphic design elements, or web page layout. Any requests for modification not deemed to be minor will be at additional charge billed at our hourly rate of $35.00 Canadian Currency. Client agrees that digitalsoul, at our sole discretion, will decide what constitutes a minor modification. 7. Completion Date. digitalsoul
and the customer must work together to complete the Web Design Project
in a timely manner. We agree to work expeditiously to complete the
Web Design Project no later than 40 days after Client has submitted
all necessary materials. However, we do not guarantee that the project
will be completed within this time frame. 8. Project Delivery. The final web site design project will be published to the customer's hosting service upon receipt of final payment. digitalsoul DOES NOT place website files on a diskette or CD or any media other then uploading directly to the customers web hosting account, even if extra payment is offered. This is due to a Canadian Tax Law. You can download your website files and burn them onto a media such as CD if you choose. Web Hosting services require a separate contract with the hosting service of the customer's choice. The customer agrees to select a hosting service which allows digitalsoul full access to the customer's account via FTP. The customer will be solely responsible for any and all hosting service charges. 9. Web Design Project Copyright. Copyright to the website design and website files are retained by digitalsoul until project completion and final payment have been made to digitalsoul from the customer. Copyright to the finished web design site produced by digitalsoul will be owned by the customer once full payment is received for the completed project. digitalsoul and its subcontractors retain the right to display graphics and other Web design elements as examples of their work in their respective portfolios. Since digitalsoul provides you full copyright once a project is completed, all Web Design Projects will contain a “Site Design By” statement with a link to digitalsoul 's Web Site posted at the very bottom of each web page. 10. Payments. Payments must be made promptly based on the terms of this Web Site Design Project. digitalsoul reserves the right to remove any Web Design Project from viewing on the Internet until final payment is made. 10.1 Fees Returned (NSF) Checks. digitalsoul charges a $35.00 fee for returned (NSF) checks. Customers that issue an NSF check will be required to submit future payments with a certified check or money order. 10.2 Payment Schedule. Payment for services provided hereby shall be made in accordance with the conditions contained in the TCOS agreement you signed and returned to digitalsoul. 11. Conditions and Disclaimers 11.1 Indemnification 11.1.1 You will indemnify and hold harmless digitalsoul, its subcontractors, and its agents against any and all actions, claims, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by digitalsoul or its subcontractors, relating to: · Your breach of any term or condition in this agreement, or your breach of any applicable digitalsoul policy or guideline as shown on the Internet at http://www.digitalsoul.ca/TCOS.htm; · Your use or inability to use digitalsoul’s services; · Your violation, alleged violation, or misappropriation of any intellectual property right or non-proprietary right of a third party. 11.1.2 You agree to fully defend and indemnify and hold harmless digitalsoul of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any copyright or other intellectual property right of any third party which is in any way related to your use of digitalsoul services or any portion thereof. Choice of counsel remains exclusively that of digitalsoul. 11.1.3 You agree to fully defend and indemnify and hold harmless digitalsoul of and from any and all third party claims, causes of action, demands, costs, damages including both direct and consequential damages, specifically including attorneys fees and costs, expert fees and costs and mediation and/or arbitration fees and costs incurred (whether paid or not) as the result of any violation or claimed violation of any privacy legislation which is in any way related to your use of the digitalsoul services or any portion thereof. You acknowledge that you are solely responsible for the data stored using the digitalsoul services and solely responsible for ensuring that the digitalsoul services are appropriate for the nature of the data being stored. Choice of counsel remains exclusively that of digitalsoul. 11.1.4 You specifically waive any claim for damages of any kind, whether direct, indirect, special, exemplary, punitive, incidental or consequential, loss of profits, or loss of business as the result of digitalsoul suspending or terminating your project or web host account in response to any claim of copyright infringement even if the material alleged to be infringing is subsequently found not to be infringing. 11.1.5 Notwithstanding anything in this Agreement, the content of the customer’s Website is the sole responsibility of the customer. The customer agrees to indemnify, defend, and hold harmless digitalsoul and its subcontractors and agents from any and all claims including, but not limited to: misappropriation of any copyright, patent, trademark, trade secret, data, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, business or personal dispute or argument, invasion of privacy or rights of celebrity, violation of any anti-discrimination law or regulation, or any other right of any person or entity, or any personal or business argument or dispute losses, damages, liabilities, judgments, or settlements, including reasonable legal fees, costs, and other expenses incurred by digitalsoul and any third party entities related to digitalsoul, related to or in connection with the content of the customer's website. 11.1.6 The terms of this section (“Indemnification”) will survive any termination of this agreement. 11.2 Disclaimer Of Warranties
11.2.2 Any information obtained by you from the Internet may be offensive, incorrect, and possibly illegal. Excepting the information on its own Website, digitalsoul has no control over the contents of any other Website on the Internet. digitalsoul makes no warrantee as to the accuracy, suitability, or legality of any information that you acquire from the Internet nor does digitalsoul provides any warrantee for any goods or services that you might acquire over the Internet. 11.2.3 digitalsoul expressly disclaims any representation or warranty that digitalsoul’s services will be error-free, secure, or uninterrupted. No oral advice or written information given by digitalsoul, its employees, licensors of the like, or subcontractors will create a warranty; nor may you rely on any such information or advice.
11.2.5 The terms of this Section (“Disclaimer of Warranties”) will survive any termination of this Agreement.
11.3.1 Customer agrees that digitalsoul’s liability and the customer's and end users' exclusive remedy related to the non-performance of the website design service shall be: (i) repair or adjustment of the service, or (ii) where repair or adjustment is not practicable, an equitable credit not to exceed the charges invoiced to the customer for the portion of the service which were non-performing. For any other claim, digitalsoul’s liability, if any, to the customer and end users for damages related to use of the service for any cause whatsoever and regardless of the form of action, shall be limited to those actually proven as directly attributable to digitalsoul, and shall in no event exceed the total charges paid by the customer during the period the said damages were incurred. Under no circumstances will digitalsoul, its agents, suppliers or subcontractors be liable to customer or third party for any indirect incidental, special or consequential damages, expenses, costs, liability, loss, or damage whatsoever, whether arising in negligence, tort, statute, equity, contract, common law, or any other cause of action or legal theory. Customer agrees, acknowledges and confirms that the limitations of liability set out in this section are fair and reasonable in the commercial circumstances of this agreement and that digitalsoul would not have entered into this agreement but for customer's agreement to limit digitalsoul’s, its agents', suppliers' and subcontractors' liability in the manner, and to the extent, provided for herein. 11.3.2 For greater certainty, customer agrees that digitalsoul shall not be liable for any lost profits, anticipated revenue, loss of data, loss of use of any information system, lost business revenue, failure to realize expected savings or any other commercial or economic loss of any kind whatsoever arising out of or in connection with this agreement or the provision of the service, even if digitalsoul has been advised of the possibility of such loss. 11.3.3 digitalsoul assumes no liability arising from (i) the use of the service furnished by digitalsoul in combination with service, products or equipment provided by customer or any third parties and (ii) the failure by the customer to perform its obligations. 11.3.4 digitalsoul’s host network or that of its subcontractors may experience periods of unavailability from time to time due to (but not restricted to) normal routine maintenance, utility interruption, equipment failure, natural disaster, acts of God, or human error. In no event shall digitalsoul be liable to the customer for any indirect, special or consequential damages, lost profits, or anticipated loss of profits, arising from, or related to, our hosting services, or the hosting services of our subcontractors. 11.3.5 The terms of this Section (“Limitation of Liability”) will survive any termination of this Agreement. 11.4 General Provisions 11.4.1 Force Majeure Either party to this agreement shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. 11.4.2 Assignment This Agreement and the rights hereunder is not assignable or transferable except that digitalsoul may freely assign all of its rights hereunder to any person or entity who shall become a principal owner, or shareholder of digitalsoul, or to any affiliated company or successor in interest of digitalsoul. Any other attempted transfer or assignment of rights hereunder shall be null and void ab initio. Upon any such assignment by digitalsoul to any other party, including to any affiliated company or successor in interest of digitalsoul, you have the right to terminate this Agreement by giving notice thereof in writing to digitalsoul and any such termination shall become effective thirty (30) days after the receipt of such notice by digitalsoul . 11.4.3 Severability The invalidity, illegality or unenforceability of any one or more provisions of this Agreement shall not affect or impair any other provisions of this Agreement. 11.4.4 Choice of Law The customer agrees to attempt to resolve any disputes with digitalsoul prior to resorting to litigation. This Agreement shall be governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada. Any action relating to this Agreement must be brought in the provincial courts located in Niagara Falls, Ontario, Canada. 11.4.5 No Agency Nothing
contained herein shall be interpreted as creating an agency, partnership
or joint venture between digitalsoul & you. · Failure to observe the terms and conditions set forth in this agreement can result in anything from a warning to a suspension of privileges or immediate termination of your project with us. · If digitalsoul terminates the services being provided to you due to a breach of any terms of this agreement, then such termination shall be without refund. The payment of the deposit towards digitalsoul web design services is non-refundable once work has commenced on the client site. The client is responsible for total hours of approved design work completed on client site up to date of cancellation. 11.5 Agreement By Paying digitalsoul By paying the initial Deposit/Invoice for use of digitalsoul’s Web Site Design Project Services constitutes acceptance of the above Terms and Conditions Of Service. 11.6 This TCOS Agreement. This agreement constitutes the sole agreement between digitalsoul and the customer regarding this Web Design Project. Any additional work not specified in this contract or any other amendment or modification to this contract must be authorized by both the customer and digitalsoul by exchanging emails. Such emails are to be kept as proof of such additional work and are deemed NOT part of this project. All prices specified in this project will be honored for 2 months after both parties sign this TCOS. Continued services after that time will require a new agreement. 12. Agreement By Use Use of digitalsoul’s web site design service or website updating services constitutes acceptance of our TCOS. Return
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