Terms of Service

Simplistics Web Design Inc. (“Simplistics”) is engaged in the design and development of websites. These terms of service (the “Terms of Service”), together with the provisions set forth in any proposal, order form, scope/statement of work (SOW), financial proposition, submission, tender, offer to contract or other contractual document submitted to you by Simplistics (collectively, the “Proposal”), constitute the entire agreement and understanding between Simplistics and you with respect to the services, deliverables or solutions set forth in the Proposal (the “Agreement”) and supersedes any and all prior written or verbal agreements, proposals or representations. In the event of an inconsistency between the Terms of Service and the Proposal, the Proposal shall have precedence.

BY SIGNING (INCLUDING BY ELECTRONIC MEANS) A) THESE TERMS OF SERVICE, B) THE PROPOSAL, OR C) THE PERFORMANCE OF THE PROFESSIONAL SERVICES OR THE DELIVERABLES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO ALL OF THE PROVISIONS CONTAINED HEREIN AND IN THE PROPOSAL, AND HAVE THE AUTHORITY TO BIND THE CUSTOMER, AND YOU ARE HEREBY CONFIRMING, ON BEHALF OF THE CUSTOMER, THAT THE CUSTOMER AGREES TO COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY PROVISION CONTAINED IN THE PROPOSAL.

REFERENCE TO THESE TERMS AND CONDITIONS ARE SET FORTH ON THE PROPOSAL. THESE TERMS AND CONDITIONS CAN BE FOUND ONLINE AT https://simplistics.ca/tos

Definitions
As used herein, the following terms have the following meanings, respectively:
1.1 “Background Intellectual Property” as used herein, means all intellectual property rights owned or controlled in whole or in part by Simplistics prior to the execution hereof, as evidenced by documentation dated prior to the effective date hereof and which is related to the work to be performed as described hereunder.
1.2 “Customer” or “you” or similar wording refers to the person or entity indicated as Simplistics’ customer in the Proposal.
1.3 “Professional Services” shall mean the services to be performed by Simplistics and described in the Proposal.
1.4 “Work Product” shall mean (a) any inventions, discoveries or improvements conceived, first reduced to practice or made in the course of or as a result of the Professional Services provided hereunder, or (b) all tangible and intangible property developed or otherwise in relation to the Professional Services performed by Simplistics pursuant to the Agreement, by Simplistics or by one or more of Simplistics’ employees, representatives or agents.
Term and Termination.
2.1 The Agreement shall be effective as of the signature (including by electronic means) of the Proposal and shall continue, unless terminated in accordance with the terms hereof or extended upon the mutual agreement of the parties, until the date on which the Professional Services have been completed.
2.2 Customer may terminate the Agreement without cause upon thirty (30) days prior written notice to Simplistics. If Customer terminates the Agreement, Customer shall pay Simplistics the full fee for any Professional Services performed (including all other costs for which Simplistics has the right to reimbursement) up to the effective date of termination.
2.3 Unless otherwise agreed in writing by the parties, Customer shall not be entitled to any refund following the termination of the Agreement, for any reason whatsoever.
2.4 For clarity purposes, upon the termination of this Agreement (for any reason whatsoever), Customer shall pay to Simplistics all fees, charges, expenses or other amounts disbursed or paid by Simplistics to third parties for material or services (including stock image, hosting, domain name registration and maintenance, statistical packages, software, and plugins) provided or performed in connection with the Agreement. Customer acknowledges and agrees that notwithstanding any provision contained in the Proposal, such third party materials and services are under no circumstances subject to refund and cannot be returned.
2.5 Either party shall be entitled to immediately terminate the Agreement for cause in the event of: (i) the material breach by the other party of its obligations hereunder, provided that such material breach is notified to such party and is not cured within thirty (30) days of the date of such notice, (ii) the filing of a bankruptcy petition by or against a party, the filing of an assignment for the benefit of creditors, the appointment of a receiver or trustee, (iii) the assignment or attempt to assign the Agreement to a third party (except as permitted in the Agreement). The non-defaulting party’s right to terminate shall be in addition to any other rights that it may have in law or in equity.
2.6 Simplistics may suspend the delivery of Professional Services immediately if Customer is in default of any of its payment obligations. If such default continues for thirty (30) days following delivery of written notice of such default by Simplistics to Customer, then Simplistics may terminate the Agreement. Any payment obligation of Customer outstanding as of the date of expiration or termination of the Agreement shall survive such expiration or termination.
Proposal
3.1 The Proposal describes the Professional Services to be performed, the requested specifications, the deliverables to be developed, and such additional terms and conditions and other information as shall be required in order to specifically define the Professional Services to be performed. The Proposal is subject to these standard Terms of Service (as same may be amended from time to time by Simplistics). Upon acceptance of the Proposal by Customer’s authorized representatives, the Proposal and these Terms of Service shall constitute a binding agreement between the parties.
3.2 Customer may, from time to time, request changes to the scope of the Professional Services, provided that, to be effective, such changes must be in writing and agreed to by both parties in an amended Proposal. If any such change results in an increase or a decrease in the total fees payable by Customer for the Professional Services, such increase or decrease in the total fees payable shall be set out in the amended Proposal or otherwise in writing. Each amendment to the Professional Services may contain such additional terms and conditions as may be mutually agreed to by the parties.
Professional Services
4.1 The following are not included in the Professional Services, unless specifically agreed to in writing between Simplistics and Customer in the Proposal and are subject to Simplistics then current standard fees, to be billed on a time and material basis:
(a) Hosting, domain management, domain registration, ongoing site maintenance, server management, data entry, content writing, changes to approved design, changes to approved wireframes, legacy and non-standard web browser support.
(b) Implementation of Customer’s feedback for design related phases after the 5th round of Customer’s review of the deliverables.
(c) resolution of problems encountered due to third-party equipment and/or software; and
(d) any onsite services.
Fees and Payment.
5.1 Customer shall pay Simplistics the fees set forth in the Proposal, in accordance with the Proposal. Customer shall reimburse Simplistics for all reasonable out of pocket expenses (including travel, lodging, and related expenses) incurred by Simplistics in the performance of any Professional Services provided that such expenses are approved in advance in writing by Customer. Simplistics reserves the right to charge the Customer credit card on file for amounts due. Customers have the right to remove the credit card from their file upon written request.
5.2 The fees indicated in the Proposal for Professional Services exclude all applicable federal, state, provincial, value-added, goods and services, harmonized and local taxes (other than taxes on Simplistics’ net income).
5.3 Unless otherwise specified in the Proposal, for projects billed on a time and material basis, Simplistics will invoice Customer for fees for Professional Services and development of deliverables provided pursuant to the Agreement on a monthly basis. Unless otherwise specified in the Proposal, for projects where Simplistics is working on out-of-scope changes to deliverables, Simplistics will issue to Customer a change request and will bill Customer immediately following Customer’s approval of the additional work and/or changes to deliverables.
5.4 All fees for Professional Services and development of deliverables provided pursuant to the Agreement shall be paid within 30 days of the date of the invoice. If any invoiced amount is not paid by Customer within 30 days of the invoice date, Customer will pay Simplistics interest on the invoiced amount from the invoice date until the date of payment in full, at a rate of 2% per month (which is equivalent to 24% per annum).
5.5 Any services requested by Customer or not expressly set forth in the Proposal will be billed separately on a time and material basis and is subject to Simplistics then current standard fees. Any material, content or other deliverables not expressly set forth in the Proposal as well as any third party material or service such as stock image, hosting, domain name registration and maintenance, statistical packages, software and plugins or else will be billed separately.
5.6 Other fees payable by Customer and outlined in the Proposal form part of the Agreement and are binding upon Customer.
5.7 All payments greater than CAD$2,000.00 made by Customer via credit card shall be subject to an additional 3% processing fee.
Customer Responsibilities
6.1 Customer shall: (i) collaborate in good faith with Simplistics and communicate in a timely manner to Simplistics any feedback, information, data, content or material reasonably requested by Simplistics to allow Simplistics to perform Professional Services and develop the deliverables; (ii) carry out reviews and respond to requests for approval and information on a timely basis; and (iii) communicate in writing to Simplistics any Customer’s requirement in connection with the Professional Services and deliverables.
6.2 Customer acknowledges that any delay on its part in the performance of its obligations may have an impact on Simplistics’ performance of the Professional Services and Simplistics shall not be liable for any delay to the extent caused by Customer’s failure to fulfill any of its obligations or requirements under the Agreement.
6.3 A project and the development, creation, performance and provision of any deliverables and Work Product thereunder will be suspended without notice if feedback, information, data, content or material reasonably requested by Simplistics is not received by Simplistics within 15 days of request. A suspension fee for an amount of $500 may be applied at the discretion of Simplistics. Simplistics will advise and invoice Customer accordingly.
Simplistics’ Obligations
7.1 Simplistics will ensure that the Professional Services are provided by properly qualified and competent personnel or subcontractors. Simplistics shall perform the Professional Services and develop the deliverables in a reasonable and workmanlike manner in accordance with industry standards and practices. Simplistics shall be entitled, in its sole discretion, to determine the method and means for performing the Professional Services and developing the deliverables.
7.2 Simplistics may subcontract the provision of all or any part of the Professional Services without the prior written approval of the Customer provided that the entering into of an agreement with a subcontractor by Simplistics will not: (i) create a contractual relationship between the Customer and the subcontractor, nor (ii) relieve Simplistics from liability for the performance of any obligations under the Agreement and Simplistics will be responsible and liable for all acts and omissions of the subcontractor.
Acceptance of Deliverables.
8.1 Upon Simplistics’ delivery of any deliverables created pursuant to the Agreement, Customer shall have ten (10) business days from the date of delivery of the deliverables to review and test the deliverables (the “Testing Period”), after which point the deliverables will be deemed to have been accepted by the Customer and will be invoiced accordingly. If within the Testing Period, Customer discovers any defect in the deliverables, Customer shall promptly notify Simplistics of such defect, including details of the defect, and the extent to which the deliverables do not conform with the specifications. Simplistics shall have a reasonable time to remedy any defects and deliver the deliverables to Customer. If any defects are discovered by Customer after the Testing Period shall be subject to Simplistics applicable warranty.
Confidential Information
9.1 “Confidential Information” means all information and data, including, without limitation, all business, planning, performance, financial, product, trade secret, technical, sales, marketing, contractual, employee, supplier and customer information and data disclosed by one party to the other party and reasonable understood as confidential and/or proprietary.
9.2 Each party agrees not to disclose any Confidential Information of the other party to any third party, except to those of its employees, agents or subcontractors who have a need-to-know such information, and then only to the extent necessary to perform under the Agreement. Each party shall maintain the confidentiality of the other party’s Confidential Information in its possession by exercising the same security measures it normally exercises with respect to its own Confidential Information. To this end, each party agrees to take appropriate action by way of instruction or agreement with its employees, consultants or other agents who are permitted access to Confidential Information, to ensure that such employees, consultants and other agents understand the parties’ confidentiality and non-disclosure obligations hereunder.
Representations and Warranties
10.1 Simplistics’ exclusive warranty with respect to the Professional Services is that the Professional Services will be performed in a professional manner conforming to generally accepted practices in the field of computer information system implementation.
10.2 EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, SIMPLISTICS MAKES NO REPRESENTATIONS OR WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, COMPATIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY PROFESSIONAL SERVICES OR MATERIALS USED OR SUPPLIED IN THE COURSE OF PERFORMING THE PROFESSIONAL SERVICES. CUSTOMER ACKNOWLEDGES THAT IT HAS OR WILL HAVE INDEPENDENTLY DETERMINED THAT ALL OF THE PROFESSIONAL SERVICES MEET ITS BUSINESS REQUIREMENTS AND THAT IT HAS NOT RELIED ON ANY REPRESENTATION BY SIMPLISTICS AS TO THE SUITABILITY OF ANY PROFESSIONAL SERVICES OR WORK PRODUCT, OR OTHER MATERIAL FOR ANY PARTICULAR PURPOSE.
10.3 Simplistics’ sole responsibility and Customer’s sole remedy with respect to any deficient Professional Services is to use commercially reasonable efforts to correct the deficiency.
Intellectual Property
11.1 All rights, including all intellectual and other proprietary rights, in and to any information, data, content or material which has been provided by Customer to Simplistics in connection with the performance of any of the Professional Services are owned and shall continue to be owned by Customer or its suppliers or licensors.
11.2 Except as set forth in the Agreement, all intellectual and industrial property rights in and to materials or any technology, data or other information, including all computer programs (in source code or object code) and documentation related thereto owned, provided or created by Simplistics during the course of performing any Professional Services hereunder, including any deliverables and Work Product, shall be owned solely and exclusively by Simplistics or its licensors, except to the extent that such materials, deliverables or Work Product incorporate any Customer confidential information. Customer shall have no proprietary rights to any software used by Simplistics in performing the Professional Services. Simplistics and its licensors shall retain all right, title and interest and all intellectual property rights to any and all Simplistics proprietary information and Simplistics software.
11.3 Simplistics shall continue to own all Background Intellectual Property. To the extent that any Background Intellectual Property of Simplistics is incorporated into any deliverables and Work Product or used in relation to the Professional Services provided hereunder, Simplistics agrees to grant to Customer a perpetual, worldwide, non-exclusive, paid up, transferable, sublicensable, and irrevocable license to make, have made, use, lease, sell and otherwise dispose of the deliverables and Work Products utilizing such Background Intellectual Property, whether or not modified.
Indemnification by Customer
12.1 Customer will indemnify and hold Simplistics harmless from all claims, actions, damages liabilities, costs and expenses suffered or incurred by Simplistics and caused, directly or indirectly, by: (a) the fault or negligence of Customer or any of its employees, agents or representatives; (b) the use or copying by Simplistics of any information, data, content or material supplied by Customer; or (c) the compliance by Simplistics with any instructions or specifications provided by Customer with respect to any Professional Services (including the use of plugins or other third party material).
Limitation of Liability
13.1 Simplistics accepts no liability for use of or reliance by third parties on the Professional Services or Work Product, including without limitation, liability resulting from any claims, including claims of third parties, for damages, whether direct, indirect, consequential, special, incidental or exemplary, howsoever caused, even if Simplistics is advised of the possibility of such damages or such damages are foreseeable. The Customer accepts sole responsibility and liability for use of or reliance by third parties on the Professional Services or Work Product.
13.2 In no event shall Simplistics be held liable or otherwise be responsible, at law or otherwise, for any compatibility issues with the hosting environment of Customers or of any third party, including but not limited to, PHP version, server emails software and server security.
13.3 SIMPLISTICS’ LIABILITY FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING FUNDAMENTAL BREACH OR NEGLIGENCE, SHALL BE LIMITED TO CUSTOMER’S DIRECT DAMAGES AND SHALL NOT EXCEED, IN THE AGGREGATE, THE AMOUNTS PAID BY CUSTOMER TO SIMPLISTICS UNDER THE PROPOSAL TO WHICH THE CLAIM RELATES. IN NO EVENT WILL SIMPLISTICS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CUSTOMER OR ANY OTHER PERSON WITH RESPECT TO ANY INTENTIONAL OR NEGLIGENT ACTS OF SIMPLISTICS, INCLUDING WITHOUT LIMITATION ANY LOSS OF REVENUES OR PROFITS, EVEN IF SIMPLISTICS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
Non-Solicitation
14.1 During the term hereof and for a period of 12 months following the termination or expiration hereof, the Customer shall not solicit, make an offer of employment to, or employ, any employee of Simplistics without the prior written consent of Simplistics.
General
15.1 The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15.2 No failure or delay by either party in exercising any right under the shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
15.3 The Agreement, including these Terms of Service, shall be governed by the laws of the Province of Ontario (Canada) and the federal laws of Canada applicable therein, without regard to conflict of law principles.