You are hereinafter referred to as the “Client” and is the organization that uses services provided by ASC Creative Ltd. (“ASC”).
1. This document constitutes the entire Agreement of the parties. Except as stated in paragraph 2, no other documents, waiver or articles, whether expressed or implied, shall contradict the policies, guidelines and conditions defined in this Agreement. Any negotiations, prior discussions, representations, promises, understandings, proposals, agreements, warranties, course of dealing or trade usage not expressly contained or referenced in this Agreement will not be binding on either party. No addition to or modification of this Agreement will be effective or binding unless agreed in writing and executed by the respective duly authorized representatives of each of the parties.
2. Hosting Agreement – The Client agrees that the Master Services Agreement located on www.asccreative.com forms a binding part of this overall Agreement. Additional Terms and Conditions contained within the Master Services Agreement will affect this Agreement. Where there is an interpretation dispute between this Proposal and the Master Services Agreement, the Master Services Agreement shall prevail.
3. Invoices and Overdue Balances – Where the Client agrees to pay recurring periodic (i.e. Monthly) charges, they will be made by pre-authorized deposit (“PAD”). Other amounts will be invoiced, and all invoices are due on receipt. A credit charge of 2% monthly (26.8% per annum compounded) applies to overdue amounts. Client hereby authorizes payment of balances overdue by more than 60 days to be debited from their account at any time. Client hereby authorizes ASC on behalf of their Business and ASC’s financial institution to debit the Client’s account, on the first of each month, any recurring fees and any authorized charges as approved from time to time. The Client authorizes ASC to increase or decrease my monthly debit as required to reflect my/our monthly fees as established by ASC from time to time, including any one-time retroactive fee adjustments as approved from time to time on the condition that a change of fees is preceded with 15 days notice from ASC.
This PAD authority shall continue until ASC has received written notification from the Client of its change or termination, to be received at least ten (10) business days prior to the next scheduled debit date. Client acknowledges that they may obtain a PAD cancellation form from www.asccreative.com, and also obtain a sample PAD cancellation form, or further information on their right to cancel a PAD Agreement at their financial institution or by visiting www.cdnpay.ca.
Client acknowledges that they have certain recourse rights if any debit does not comply with this agreement. For example, the Client has the right to receive reimbursement for any debit that is not authorized or is not consistent with this PAD agreement. More information on your recourse rights are available by the Client’s financial institution or by visiting www.cdnpay.ca.
ASC may assign this authorization to a related company or partner by ASC on providing at least ten (10) days prior written notice. Such notice is merely notice and not a request for approval or acceptance of such assignment.
The Client undertakes to provide written notice to ASC of any change in the account or address information provided in this authorization as soon as the change occurs. The account information changes must be received by ASC at least ten (10) business days prior to the next scheduled debit date in order to avoid the possibility that my debit is returned by my financial institution.
The Client acknowledges that delivery of this authorization to ASC constitutes delivery to the Client’s financial institution, and acknowledges receipt of a copy of this authorization.
4. Liability exclusion – The total liability of ASC, including its subcontractors and suppliers, for all claims of any kind for any loss or damage will not exceed the amount paid by Client allocable to the particular item of Work which gave rise to the claim. In no event will ASC or its subcontractors or suppliers be liable for any special, consequential, incidental, indirect or exemplary damages including, but not limited to, loss of profit or revenue, loss of use of any network, system or equipment, cost of capital, cost of substitute goods, facilities, services or replacement communications, downtime costs, loss of business information, claims of Client’s customers for such damages, or any other claims for damages that are not the direct, immediate, and inevitable consequence of ASC's negligence or breach of its obligations under this Agreement. The time limitation for any action is twelve (12) months from the date of installation of the Work which gave rise to the claim.
ASC assumes no liability for any claims, losses, damages or loss of business the Client may directly or indirectly incur by reason of any act, neglect, fault or representation of ASC, its agents, contractors or employees.
5. Time is of the Essence - Time is of the essence for this Agreement.
6. Project Restart – Where the Client does not provide requested information or project feedback in response to ASC within a 30 day period, the project shall enter into a ‘dormant’ state. In order to provide for the costs project and resource costs associated with restarting the project (including, but not limited to, reassigning project resources), there shall be an additional cost of the lessor of 10% of the total project cost, or $300.
7. Title - All Work, Intellectual Property, Software, Ideas and materials (“Work”) created as a result of this agreement are the property of ASC. Information created using the Work is the property of the Client. ASC grants an unfettered license to use the Work arising from this agreement to be used solely in the Client’s day-to-day business. Rights to Use the Work transfer to the Client only upon receipt of full and complete payment by ASC Creative Ltd. Unless stated otherwise, written and on-line presentation formats, techniques and tools, research techniques, research and office software and investigative tools are the property of ASC Creative Ltd.
ASC will work within the licensing requirements of the software providers used in this Work / Project.
Client agrees to let ASC Creative Ltd. mention Client's name and services when communicating with other uses of ASC services or with the media. This includes describing Client services to sales prospects that are not Client competitors, press releases, advertising, inclusion in client rosters in collateral and online, and describing Client's benefits to the media. ASC will alert Client to any media activity where Client's name is likely to be mentioned, and will let Client review any press releases or attributed quotes specific to Client before ASC releases them.
8. Third Party Service Provider – Additional interactions with third party service providers requires more time and/or modifications to our project planning. Where the Client introduces a third party service provider after presentation of this Agreement, ASC shall be entitled to invoice on an hourly basis above the estimate included in this proposal for any Work provided directly related to working with, for or on behalf of the service provider.
9. Confidentiality - The information contained herein and all information pertaining to each Client and each Project constitutes “Private and Confidential Information” and is intended exclusively for the named parties. Each party covenants and agrees not to disclose or permit the disclosure (either during the term of this Agreement or at any time thereafter) of any Private and Confidential Information to any person nor to use or permit the use of same by any other person for any purpose or purposes other than those of ASC.
10. Termination - Client may terminate only for gross breach of this Agreement by the Agent, as evidenced by a written letter outlining the breach and allowing 30 days to rectify the breach. If the breach is not rectified within the period, ASC may terminate the Agreement on the 31st day.
Within the period, ASC may document the issues related to the cause of the breach and propose alternatives to correcting the breach. Client may decide to accept or reject the proposed alternatives, and notify ASC of their decision. If the proposed alternatives are rejected, Client must provide a proposed set of actions to rectify the breach and provide a further 10 days for ASC to comply.
Client responsible for making payment to date of termination or the next project milestone, whichever is longer. Premature termination of this agreement has no effect on the payment obligations as outlined in the payment schedule contained within the proposal.
11. Mediation - If a dispute arises between the parties in relation to this Agreement, or out of this Agreement, the parties agree that the following dispute resolution process must be used.
(a) A meeting must be held promptly between the parties, attended by individuals with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute.
(b) If, within [14] days after such meeting, or such further period agreed to by the parties in writing, the parties have not succeeded in negotiating a resolution of the dispute, the parties agree to submit the dispute to mediation.
(c) The parties must jointly appoint a mutually acceptable mediator. If the parties are unable to agree upon the appointment of a mediator within [7] days after the end of the negotiation period referred to in paragraph (b), the parties must apply to the Mediate BC Society (formerly known as British Columbia Mediator Roster Society), or such other organization or person agreed to by the parties in writing, which will, within [7] days of the application, appoint a mediator taking into account:
(i) the need for the mediator to be neutral and independent,
(ii) the qualifications of the mediator,
(iii) the mediator’s fees,
(iv) the mediator’s availability, and
(v) any other consideration likely to result in the selection of an impartial, competent and effective mediator.
(d) The parties agree to participate in good faith in a mediation session which must occur within [30] days after the appointment of the mediator, or such further period agreed to by the parties in writing.
The parties agree that the mediation will be conducted in accordance with the Mediate BC Society.
(e) If the parties are unable to resolve all issues in dispute in the mediation, the parties agree that the remaining issues in dispute must be determined by arbitration under the Commercial Arbitration Act, R.S.B.C. 1996. The parties agree that the decision of the arbitrator will be final and binding and will not be subject to appeal on a question of fact, law or mixed fact and law.
(f) The parties agree to share equally the costs of the mediation and arbitration, which costs will not include costs incurred by a party for representation by counsel.
12. Notices - Notices will be sent to the other party at the following address. If via postal mail, the notice will be deemed delivered 7 weekdays after being sent. If via email, the notice will be deemed delivered 24 hours after being sent. The addresses are subject to change upon providing written notice.
Acceptance of Proposal. Acceptance of this Estimate signifies that you have read the above terms and agree to abide by them.
