LILLY & LARRY LEAN WEB TOOLS TERMS OF SERVICE AND CONDITIONS OF USE
BY ACCEPTING THIS SERVICE AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET OUT BELOW.
1.1 The Service Provider, Lilly & Larry Lean Web Tools, designs, customizes, manages and hosts websites, landing pages, computer programs and software systems specifically for use on the Internet.
1.2 The Client wishes to supply data for use within such websites, landing pages, computer programs and software systems. Throughout the terms of this agreement any such data, supplied by the Client shall remain the property of the Client and the Client shall retain explicit copyright over the same.
1.3 Under the terms of this agreement the Service Provider grants the Client license use The System to host a digital version of the Client’s data. The digital version produced, known as the System Material, is then hosted on the Servers managed by the Service Provider.
In this Agreement, unless the context otherwise requires:
“The System” means the computer program and software systems setup and hosted by the Service Provider, consisting of a package of composite, customized programs including WordPress, themes and plugins, and shall include all updates and additional or substitute programs and software provided by the Service Provider pursuant to this Agreement;
“System Material” means any text, photo or other media uploaded into The System which is hosted on servers provided by the Service Provider.
“Server” means the computer equipment that The System and System Material is to run on.
“Service Provider” means Lilly & Larry Lean Web Tools.
“Client” means the Client entity accepting this agreement.
“Payment Terms” means the Payment Terms that are made payable to the Service Provider, Lilly & Larry Lean Web Tools.
“Source Code” means a set of programming language instructions that must be translated into machine instructions before The System can run.
“Setup & Configuration Fees” means any fees due for website or landing pages setup, configuration and customization. Setup & Configuration Fees are due and payable in full prior to the Project Start Date.
“Monthly Subscription Fees” means any fees due on a recurring monthly basis. Monthly Subscription Fees are due and payable on the first day of the monthly period they cover. Monthly Subscription Fees may include but not be limited to: bandwidth, storage, backups, security scanning, page caching, system maintenance & software updates, and up to 10,000 UV/month per website subscription plan. Additional fees of $2.00 per 1,000 UV per month may be charge for UV overages.
“Project Start Date” means the date on which work for a project begins. All Setup & Configuration Fees are due and payable in full before the Project Start Date.
“Project End Date” means the date on which work for the project ends and the website or landing page is ready for Final Review and Approval. The Project End Date may or may not be the same as the Project Launch Date, depending on the duration of the Client Review and Approval process.
“Monthly Subscription Fees Billing Start Date” means the date on which billing of the Monthly Subscription Fees begins. The Monthly Subscription Fees Billing Start Date is equal to the Project Start Date.
“Project Launch Date” means the date on which website or landing page is to ‘go live’ and become publicly accessible.
3. Software License
3.1 The Client shall accept a non-exclusive License from the Service Provider for the Client to use The System on the terms and conditions hereof and the said License is hereby granted by the Service Provider.
3.2 The System may not be used by the Client other than for its wholly owned content. The Client may not use or permit the use of The System for the purpose of providing a computer bureau service or for any other purpose save as aforesaid. This License is personal to the Client who shall not be entitled to mortgage, charge, directly or indirectly assign, delegate or transfer to any person or grant any form of sub-License in respect of the benefit of the same.
4. System Material
4.1 The Client shall not be entitled to have access to the Source Code in respect of The System or to create or to attempt to create the same.
4.2 The Client warrants that they will not provide any data which is offensive, libellous, obscene or pornographic for inclusion in System Material.
4.3 The Service Provider may from time to time and at any time require any System Material supplied by the Client to be replaced with alternative System Material.
4.4 The Service Provider shall from time to time provide the Client with updates for The System (if any) as soon as is practicable after such update becomes generally available to the Service Provider’s clients.
5. Rights in The System and Their Protection
5.1 The Client shall have no right to the property in The System or System Material, or to the copyright or other intellectual property rights of the Service Provider of whatever nature therein, acknowledges the confidentiality thereof and the title of the Service Provider therein, and undertakes not to do or assist in the doing of anything which might bring the Service Provider’s title into question.
5.2 Any changes in, developments of or improvements to The System or any System Material (with the exception of content provided to be included in the System Material) which are made to fulfill a Client request shall be the absolute property of the Service Provider and the Client shall forthwith communicate the same to the Service Provider which shall be entitled to the use of same as it may in its absolute discretion think fit.
5.3 The Client shall not at any time disclose to any person any information techniques or know-how concerning The System, the System Material or its use and shall take all practical steps to prevent the disclosure of any such information to any other person including the introduction and maintenance of procedures for the safe custody of The System and all System Material supplied to the Client;
5.4 The Client will instruct each employee who is or may be required to deal with The System or any System Material that they are confidential and are not to be disclosed to any third party; and
5.5 The Client undertakes to indemnify the Service Provider against all costs, claims damages and expenses (including legal expenses) incurred by the Service Provider by reason of the disclosure of information techniques or know-how concerning The System or any System Material to third parties or of any other fact or omission which constitutes a breach of this clause; this clause shall not apply to information which is or becomes public knowledge through no fault of the Client or User.
6. Infringement of Rights
6.1 The Client shall promptly and fully notify the Service Provider of:
6.1.1 any actual threatened or suspected infringement of the copyright or other intellectual rights of the Service Provider in The System or any System Material or of any breach of confidence relating thereto which comes to its notice; and
6.1.2 any claim brought against the Client alleging that its use of The System or any System Material infringes the copyright or other intellectual rights belonging to or alleged to belong to the claimant.
6.2 If any such claim as is mentioned in clause 6.1.2 is brought against the Client, the Service Provider may at its option either;
6.2.1 require the Client to cease using the System Material which allegedly infringes the rights of the claimant; and/or
6.2.2 require the Client to defend or settle the claim at the cost of and in accordance with the directions of Service Provider, in which case it will indemnify the Client against all costs, damages or other compensation awarded against or agreed with the consent of the Service Provider to be paid in settlement by the Client, subject to the Service Provider being entitled to all costs, damages or other compensation awarded against or agreed to be paid in settlement by the claimant.
7. Maintenance of The System
7.1 The Service Provider will at its own expense be responsible for routine day to day maintenance of The System.
7.2 The Client shall promptly notify the Service Provider of any defect or error in The System or the System Material in its possession, whereupon the Service Provider shall take all proper steps to correct the same as soon as practicable.
7.3 In the event of a fault regarding The System availability the Service Provider will respond within 2 business days of the fault being brought to the Service Provider’s attention. All reasonable efforts will then be made to resolve the fault.
Faults that do not affect The System availability will be responded to within 5 business days of being brought to the Service Provider’s attention and the Service Provider will communicate to the Client within a reasonable period the results of the Service Providers testing of The System.
7.4 At the Service Provider’s discretion, the Client may be granted access to The System and accept responsibility for uploading and creating System Material.
8. Warranties & Service Level Agreement
8.1 Disclaimer. There are no warranties or guarantees for services. The Service Provider makes no express representations or warranties, or accepts any conditions except those expressly stated in sections 8.2, 8.3 and 8.4 below. The Service Provider disclaims all other representations, warranties and conditions, express or implied, including, without limitation, implied warranties or conditions of merchantability and fitness for a particular purpose.
8.2 The Service Provider guarantees that the applications will be available 99% of the time in any given month, excluding scheduled maintenance. Upon the Client experiencing website downtime of 1 full business day or more, the Service Provider will extend the Client’s monthly site hosting by one week for each 1 full business day of downtime experienced, up to a maximum of 4 weeks of hosting for the affected website within one calendar year of hosting. For the purposes of this agreement, business days are defined as being 9 AM to 5 PM, Monday to Friday Eastern Standard Time, excluding statutory holidays.
8.3 The Service Provider guarantees the functioning of all website components and will restore any failed site component at no cost to the Client. Site component restoration will begin once the Service Provider identifies the cause of the problem reported by the Client.
The Service Provider guarantees that The System will be restored back to full working order within 48 hours of notification. In the result of any additional time that is required to restore The System, the Service Provider will extend the Client’s monthly site hosting by one week for each additional 1 full business day of downtime experienced, up to a maximum of 4 weeks of hosting for the affected site within one calendar year of hosting. For the purposes of this agreement, business days are defined as being 9 AM to 5 PM, Monday to Friday Eastern Standard Time, excluding statutory holidays.
8.4 The Service Provider guarantees that System Material shall be archived on a weekly basis.
9. Liability of the Service Provider
9.1 Limitation of liability. In no event will The Service Provider be liable for any losses or damages incurred by The Client, whether direct, indirect, incidental, special, exemplary or consequential, including lost or anticipated profits, savings, interruption to business, loss of business opportunities, loss of business information, the cost of recovering such lost information, the cost of substitute intellectual property or any other pecuniary loss arising from the use of, or the inability to use, the licensed software regardless of whether you have advised us or we have advised you of the possibility of such damages. The Service Provider’s aggregate liability in respect of any and all claims will be limited to twenty-nine dollars Canadian ($30.00 CAD). The foregoing limitations apply regardless of the cause or circumstances giving rise to such loss, damage or liability, even if such loss, damage or liability is based on negligence or other torts or breach of contract (including fundamental breach or breach of a fundamental term).
Neither The Client nor The Service Provider may institute any action in any form arising out of this agreement more than one (1) year after the cause of action has arisen.
9.2 The Service Provider shall not be liable for the performance use or consequences of any changes to The System or any System Material which are made otherwise than by the Service Provider and the Service Provider shall have no obligation hereunder to correct, maintain or update any part of The System or any System Material which has been the subject of any such change.
9.3 The Service Provider warrants that The System or any System Material will not infringe the copyright or other intellectual property rights of any other person.
9.4 The Service Provider is responsible for ensuring that the necessary Licenses are in place in respect of any third party software used in the development, upgrading and maintenance of The System or System Material.
9.5 The Service Provider’s liability to the Client for the breach of any part of Clause 8 above shall be limited to a maximum amount of twenty-nine dollars Canadian ($30.00 CAD).
9.6 The Client warrants that they have copyright or License to use all data provided to be processed by and/or hosted on The System and included in the System Material and hereby indemnifies the Service Provider against all costs (including costs of defending such claim), damages or other compensation awarded against or agreed by the Service Provider in relation to claims made by Third parties for breach of copyright and or breach of license in relation to such data.
10. Force Majeure
10.1 Neither party shall be liable to the other party insofar as it is prevented from performing its obligations under this Agreement for any reason beyond its control including (but not limited to) war, civil disorder, strikes, lockouts or other industrial disputes and shortage of labour or materials.
11. Period of Agreement and Termination
11.1 Either party may terminate this Agreement by giving the other 30 days’ written notice. For the duration of the notice period all clauses within this Agreement will remain in force.
11.2 In addition to and without prejudice to any other remedy either party may forthwith terminate the License granted pursuant to this Agreement at any time by giving to the other 30 days’ written notice if the other party has committed any breach of the terms of contract or if the other party goes into liquidation or becomes insolvent or if a receiver, administrator or other similar officer is appointed in respect of the whole or any part of the undertaking and assets of that party or if being an individual either party commits an act of bankruptcy.
For the duration of the notice period all clauses within this Agreement will remain in force.
11.3 Upon termination of the agreement the Service Provider shall destroy all data supplied by the Client that is held within The System.
11.4 Fees paid to the Service Provider by the Client for setup, customization and/or hosting of a Client website or landing page are non-refundable.
12. Notices and Service
12.1 Any notice or information required or authorized by this Agreement to be served or given by either party to the other may be served or given by sending the same by first class mail or email to the other party at the address specified overleaf, and in the case of notice sent by first class post it shall be deemed to have been given 72 hours after posting, and in the case of notice sent by email it shall be deemed to have been given 1 hour after posting.
13.1 The Client and User undertake to treat as confidential and keep secret from any third party all clauses of this Agreement. The Client and User undertake to treat as confidential and keep secret from any third party all information contained or embodied in the System Material and all documentation and/or information conveyed to the Client in respect of The System.
14. Payment Terms
14.1 All invoices for Setup & Configuration Fees are due upon receipt and must be paid in full prior to the Project Start Date. In the event that invoices are not paid within 30 days of the Project Start Date then the Service Provider reserves the right to suspend the project and Client access to The System. The Service Provider will give the Client 5 business days’ notice by email that it is to suspend the project and access to The System and will reinstate the project and access once all overdue invoices have been settled in full.
14.2 Monthly Subscription Fees are automatically billed to a valid Client Credit Card on a monthly basis. In the event that a Monthly Subscription fee payment transaction fails, the transaction will be re-tried up to 2 additional times. In the event that a Monthly Subscription fee payment transaction fails 3 times, the Client will be notified by email and have 24 hours to provide updated Credit Card information to complete the transaction. In the event the transaction cannot be completed within 24 hours, the Service Provider will suspend the project and Client access to The System. The Service Provider will then give the Client 5 business days’ notice by email that it is to terminate the project and will reinstate the project and access once all overdue invoices have been settled in full. In the event that the Client does not respond and settle the overdue Monthly Subscription fees in full within 5 business days, the Service Provider shall delete the project and project data from The System.
14.3 All costs and fees stated in this Agreement are subject to the rate of GST/HST prevailing at the date of invoicing.
14.4 Any sums unpaid by 30 days after the invoice date shall be subject to a late charge of 2% per month on all outstanding amounts.
15. Applicable Law and Jurisdiction
15.1 This Agreement shall be governed by, and construed in accordance with the laws of the Province of Ontario.