These terms and conditions shall apply to any trading agreement or other contract or arrangement between the Client and Pixelette Technologies.
A. The Developer is engaged in the business of the design and development of Internet websites; and
B. The Client wants to retain a Developer to design and develop a website. The Developer and Client agree as follows:
1. Scope of Services.
The developer agrees to design and implement (the “Development Services”) the Website for the Client following the specifications outlined in the statement of work or the quote.
2. Price and Payment Terms.
The client will pay the Price to the Developer for the Development Services according to the terms and timeframes for completion outlined in the statement of work or the quote.
3. Ownership of Intellectual Property.
Provided that Developer has received payment of the Price for the Development Services according to this Agreement, Developer at this moment assigns to Client all right, title, and interest in any intellectual property created or developed by Developer for Client under this Agreement. Content Management System (also referred to as Admin Utility), if applicable to the project, is excluded from such ownership for Realtor and Real Estate websites, which will remain the sole property of the Developer. In the case of websites other than Real Estate and Realtor, the Client also has ownership of the Content Management System.
4. Confidential Information.
4.1 Confidential Information of the Client.
All information relating to the Client that is known or ought reasonably to be known to be confidential or proprietary, or which is respect of a client of the Client or is marked as such, will be held in the strictest confidence by the Developer and will not be disclosed or used by Developer except to the extent that such disclosure or use is reasonably necessary to the performance of the Development Services, provided that the Developer has specific prior written authorisation of the Client to do so.
4.2 Confidential Information of the Developer.
All information relating to Developer that is known or ought reasonably to be known to be confidential or proprietary, or which is marked as such, will be held in the strictest confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement, provided that the Client has specific prior written authorisation of the Developer to do so.
5. Warranty and Disclaimer.
Developer warrants that the Development Services will be provided in a workmanlike manner and conforming to generally prevailing industry standards.
6.1 Limitation of Remedies.
Subject to subsection 6.2, the Client’s sole and exclusive remedy for any claim against Developer concerning the quality of the Development Services will be the correction by Developer of any material defects or deficiencies (the “Deficiencies”).In the absence of any such Deficiency Notice, the Development Services will be deemed satisfactory to and accepted by the Client.
7. Limitation of Liability.
In no event will Developer be liable for any loss of profit or revenue by Client, or for any other consequential, incidental, indirect or economic damages incurred or suffered by Client arising as a result of or related to the Development Services, whether in contract, tort or otherwise, even if Client has been advised of the possibility of such loss or damages. The client further agrees that the total liability of the Developer for all claims of any kind arising as a result of or related to this Agreement, or any act or omission of Developer, whether in contract, tort or otherwise, will not exceed an amount equal to the amount act by Client to Developer for the Development Services during the six (6) month period preceding the date the claim arises.
The client will indemnify and hold Developer harmless against any claims by third parties, including all costs, expenses and attorneys’ fees incurred by Developer therein, arising out of or in conjunction with Client’s performance under or breach of this Agreement. Client warrants and represents that it is the rightful owner or licensee of all content that it may provide to the Developer for implementation on the website. The client will indemnify and hold Developer harmless against any claims for infringement of intellectual property, including but not limited to infringement of any copyright, trademark, patent or trade secret made against Developer by any third party.
8. Relation of Parties.
The performance by Developer of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between Developer and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
9. Employee Solicitation Hiring.
During the period of this agreement and for twelve (12) months thereafter, neither party will directly or indirectly solicit or offer employment to or hire any employee, former employee, subcontractor, or former subcontractor of the other. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party employed or utilised by that party on the Effective Date of this Agreement.
Subject to subsection 6.2, all disputes arising out of or in connection with this Agreement shall be referred to and finally resolved by a single arbitrator (the “Arbitrator”).
10.2 Final and Binding.
The Arbitrator’s decision on all issues or matters submitted to the Arbitrator for resolution shall be conclusive, final and binding on all of the parties.
The Arbitrator shall determine who shall bear the costs of arbitration under this section.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party. This Agreement will ensure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein.
11.2 Time is of the Essence.
Time shall be of the essence of this Agreement.
Suppose any term of this Agreement is found to be unenforceable or contrary to law. In that case, it will be modified to the minor extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
11.4 Force Majeure.
Neither party will be held responsible for any delay or failure in the performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed party’s reasonable control.
11.5 No Waiver.
The waiver of a breach of covenant will not constitute a waiver of any breach of covenant. All waivers must be signed by the party waiving its rights. This Agreement may be modified only by authorised representatives of the parties.
11.6 Entire Agreement.
This Agreement, together with any attachments referred to herein, constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior agreements, proposals, negotiations, representations, or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter into this Agreement by any representations or promises not expressly stated herein.
This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which will constitute the same instrument. Delivery of an executed copy of this Agreement by facsimile or other means of electronic communication producing a printed copy will be deemed to be execution and delivery of this Agreement.