Terms of Services Agreement

Last updated: Jan 6, 2020.

By hiring, ordering services from, or retaining services from Modern Traction Inc. of 2011 Smoke Bluff Rd., Squamish, BC, V8B 0A7, Canada (“Agency”), you (“Client”) confirm you have read and agree to the terms and conditions as set forth within this agreement.

SERVICES: This agreement constitutes an order for digital strategy, copywriting, graphic design, web design, web development, and consulting. The Scope of Work, such as services rendered and deliverables for chosen service package as explained on https://moderntraction.com related service page, Checkout Form, or Purchase Order.
OFFICE HOURS & COMMUNICATION: Office hours are Monday through Friday, 9 am to 5 pm Pacific timezone for any email or phone communication. Our offices are closed for major Holidays. Email is the main source of communication between Client and Agency. Telephoned or video meetings must be pre scheduled no less than 24 hours prior. Cancellation requires a minimum of 24 hours advance notice.
PROJECT DATES: Start dates, or VIP Day date will be officially scheduled once your payment is received.
CLIENT RESPONSIBILITY: Client understands that:
1. Agency is not an employee, and that this will be a collaborative, professional relationship of equals, as in a partnership, where mutual professional respect, courtesy, and consideration are expected.
2. Agency is a business with other clients to service and requires fair, realistic notice in order to attend to requests and projects. Poor planning or miscommunication on the part of Clients will not constitute an emergency for Agency.
3. Client availability for calls and/or email responses for feedback or questions will need to be prompt in order to keep the project on schedule.
DELAYS & PROJECT PAUSE: Client understands that:
1. If Client anticipates being unavailable during project, or scheduling conflicts, we may need to reschedule the Production, based on Client and Agency’s next availability.
2. If Client causes delays delivering Assets, account information or in communication needed to complete production, we reserve the right to reschedule the project at our next availability.
3. If Client does not deliver required assets, documentation, respond to questions, requests, and communications from Agency after two (2) weeks of notification via email, the Agency reserves the right to pause the agreement and project until Client’s availability, and reschedule the project at next Agency’s calendar availability and impose a Project Restart Fee.
TERM / TERMINATION:
1. Either party may terminate this agreement upon 14 days written notice to the other party. Provided, however, that each party may terminate the agreement immediately without prior notice in the event of a breach of this agreement by the other party.
2. Upon termination, Agency shall invoice Client for any payment due for value of the work rendered, and payment will be due immediately upon receipt.
3. In the event Client terminates the project prior to project start, the Agency retain 20% of full engagement amount to cover lost earnings.
MATERIALS & INFORMATION:
1. Client will provide all needed assets and content, such as but not limited to, photos, graphics, logos, fonts, copy (text), video links and any other files necessary to complete the contracted services or project. Source material must be legible and cleared for usage rights. Agency is no responsible for any illegal use of copyrighted material or rights infringements by any provided materials.
2. All assets needed to complete the project and render services must be delivered by Client by stipulated dates. If any delays impact the timeline, we will do our best to accommodate the Client, but we reserve the right to reschedule the project at our next availability, and may charge a rescheduling fee.
3. Client is responsible for furnishing all pertinent information, and for furnishing accurate, truthful, and complete information necessary for Agency to perform or complete the contracted services or project.
ADDITIONAL REVISIONS, SCOPE OF WORK CHANGES, AND NEW REQUESTS:
1. For each deliverable, or web page, 2 revisions are included. If additional Revisions are requested by Client, beyond what is included in package, and time allows, revisions can be made additional at a rate of $125/hr, billed to Client’s credit card upon completion. Agency reserves the right to refuse making revisions that are not mission critical to project completion, and may choose to complete these as a new project once the scope of work for the current project is completed and delivered.
2. Each new change request affecting the contracted services or project must be made in writing and a minimum of two (2) weeks lead time for any change to the scope of work affecting deliverables for the project. Agency reserves the right to reschedule project completion in order to schedule request, based on availability, and deliver project at a later date, and may incur additional fees.
3. Client will allow for reasonable time frames for new deliverables due dates, based on Agency availabilities. New rush requests for deliverables needed within 72hrs or less and projects requiring weekend or holiday work may be subject to 25% surcharge for rush fees.
4. For significant Scope of Work changes (due to new functionality or feature requests) that are not critical to the completion and launch of the website, Agency reserves the right to refuse the new request or changes until completion and delivery of the project.
5. Additional consulting or web design service packages can be ordered by Client upon request (available as Half or Full-Day packages).
RETAINER: Monthly Retainers provide ongoing support at a discounted rate up to the number of hours set forth in this Agreement. Retainer fees are required 100% payment on billing date paid by credit card. If payment is not received within 7 days of due date (e.g. if card is declined) the full standard hourly rate ($125/hr) will apply for any work performed during that month and monies received will be applied accordingly. Services rendered beyond the retainer number of hours will be billed at the standard hourly rate unless the client chooses to upgrade to a higher package (if available), with payment due upon receipt. Hours are billed by 15 min increments. Payments rendered are considered fully earned and non-refundable however, for ongoing clients, unused hours WILL NOT BE carried over into the next month.
OWNERSHIP OF ARTWORK, WORK PRODUCT & FILES: All artwork or graphics, videos, audio, diagrams, PDFs, documents and other custom artwork, written website copy or code created by the Agency in the course of performing Services hereunder (known as “Work Product”) belongs to the Client. Client acknowledges and agrees that all aspects outside the Work Product, and not limited to code or artwork created by third parties, constituting intellectual property and valuable trade secrets, including and without limitation, programs, methods of processing, design and structure of individual programs, softwares, themes, plugins and their interaction and programming techniques employed therein shall remain the sole and exclusive property of the Agency and shall not be sold, revealed, disclosed or otherwise communicated, directly or indirectly, by Client to any person, company or institution whatsoever other than as expressly set forth herein. Certain work which is not specific to the business, Work Product or Services rendered for the Client, that is deliverables which don’t specifically relate to the Services, are owned by the Agency. Ownership survives the term indefinitely from the delivery of work products and project is completed.
DELIVERY: Completed projects and artwork files are delivered via cloud storage, computer server or email.
PROMOTIONAL USE: The Agency shall retain the right to display deliverables as examples on our website for promotional purposes only.
EXPENSES: Expenses incurred on behalf of Client are NOT included in any fees and will be billed to Client. Reimbursable expenses may include, but not limited to, stock images, fonts, specific WordPress plugins, vendors or contractors for hire for specific needs (e.g. custom illustration creation), shipping and handling costs. Payment for such expenses incurred on behalf of Client will be due upon receipt.
ACCURACY OF INFORMATION: Client agrees that the accuracy of information supplied to Agency is the sole responsibility of Client, and that Agency is not responsible and shall not be held liable for the results of services performed on the basis of inaccurate, incomplete or untruthful information furnished by Client. Client assumes full responsibility for acceptance of work or services performed and agreed upon, as well as final proofreading and accuracy. Agency is not responsible for errors or omissions included in Work Product, deliverables or project.
PAYMENT: Client agrees to commit to payment terms as stipulated in the Purchase Order Form or Scope of Work Agreement. All payments agreed on are owed and shall be made prior to project delivery and/or website launch.
PAYMENT OPTIONS: Client will provide Agency with valid and updated credit card information, or with alternative means of payment reasonably to Agency. MasterCard, VISA, or Bank Transfer are accepted and payment is processed through our merchant account (Stripe). Upon provision of credit card information Client authorizes Agency to charge such credit card for services and/or any incurred expenses for the initial term and any monthly renewal subscription (e.g. hosting, Website Aftercare services), as stipulated in the Scope of Work.
REFUNDS: Agency does not provide any refunds on deposits (or first payments).
LATE PAYMENTS & FEES:
1. Payments not received by the due date will result in work cessation. Agency reserves the right to refuse completion or delivery of work until past due balances are paid. Monthly late charge of 1.75% (APR of 21%), whichever is greater, will be assessed on unpaid balances every thirty (30) days.
2. Clients who consistently fail to respond to questions in a timely manner, do not supply needed information, or otherwise impair efficient workflows, increase administrative time, and prevent Agency from working to optimum standards and serving other clients in a fair and equal manner. Agency reserves the right to impose late fees on delinquent payments, and/or increase hourly rates of Clients who fall into this category.
3. If any delays (such as not providing needed assets or feedback by set date) or cancellations impact the project start date, the Agency reserves the right to reschedule the project to our next availability and charge additional fees.
4. Rescheduling production will incur a rescheduling fee of $400 USD, and rescheduling of any calls will incur a $175 fee unless written request is made by email at least 2 business days prior.
LIEN: All materials, Work Product, or deliverables created by Agency may be retained as security until all overdue payments or just claims against Client are satisfied.
Consent to Video Recording: Client consents to being recorded for their own private use.
REPRESENTATIONS AND WARRANTIES
1. In General: The warranties set forth in this agreement are exclusive and are in lieu of all other warranties, express or implied, including but not limited to, the implied warranty of merchantability and fitness for a particular purpose. Except when otherwise stated in writing the materials produced under the terms of this agreement are provided to client “as is,” that is, without warranty of any kind, either expressed or implied. The entire risk as to the quality and performance of the software and/or services provided under this agreement rests solely with the client. Should the software or program prove defective, client solely assumes the cost of all necessary servicing, repair or correction, including without limitation any “debugging.” Except as otherwise stated below, neither party makes any warranties of any kind or nature, whether express or implied, including, but not limited to, warranties related to information or business advice provided, warranties related to outcomes based on information or advice provided, warranties of merchantability or mercantile quality, warranties of fitness for a particular purpose or use, warranties or conditions arising by statute or otherwise in law, or warranties of any products or services provided by third party vendors.
2. Professional Service: Agency warrants that it will perform all Services under this Agreement with the degree of care and skill ordinarily exercised by members of Agency’s profession.
3. No Infringement: The parties represent and warrant that their disclosure and delivery of any code, information, documents, software or any other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right or licenses of any third party, including, but not limited to: any copyright, usage licenses, patent or trade secret. All content created as a portion of the Package that constitute usage licenses for purchased items, text, graphics, animation, audio and/or digital video components, and all final images includes as a part of the Package shall be transferred to Client and can not be resold as is or modified as a derivative for resale by the Client.
4. Warranty Disclaimer: Client agrees that it shall indemnify and hold the Agency harmless from and against all damages, claims, liabilities, actions, suits, threats, demands and settlements arising directly or indirectly from the use and operation of the website, made by Client or any other party, including but not limited to incidental and consequential damages, lost profits, business interruptions damages, injury related damages, special and punitive damages. In addition:
  1. The Agency may provide website maintenance services (Website Aftercare) to Client, in which Agency assumes no responsibility for any fault, error, omission, deletion, delay in operation/transmission or monetary loss that may arise during or after maintenance.
  2. Agency may offer and resell WordPress website hosting services to Client, provided by Siteground.com, and won’t be held responsible for server downtime, service interruptions, malware injections, privacy or data breaches or ransomware due to a vulnerability being exposed on the Siteground managed servers or hosting environments.
  3. In the event that any software delivered by Agency either created by Agency or third-party becomes faulty, Agency will not be liable for any incurred loss.
5. Indemnification / Release of Liability: Client shall indemnify, defend and save Agency harmless from any and all suits, costs, damages, or proceedings, including, but not limited to, Agency’s services, pertaining to any and all litigation in which the Client is a party. Client shall pay all expenses incurred by Agency including, but not limited to, all attorneys’ fees, costs and expenses incurred should Agency be named a party in any litigation to which Client is a party. Client shall further indemnify and hold harmless Agency and it’s affiliated and associated companies, and their respective directors, officers, employees, agents, representatives, independent and dependent contractors, licensees, and its successors from liability for any and all claims, costs, suits and damages, including attorneys’ fees arising directly or indirectly out of or in connection with the operation of Client, and from liability for injuries suffered by any person relating to the Client. This agreement to indemnify Agency is not limited to any acts or omissions, statements or representations made by Agency in the performance and/or nonperformance of Agency’s duties here under and relating to all contractual liabilities, which may be alleged or imposed against Agency. In the absence of negligence, however, Agency will not be held liable for loss, destruction or damage of any kind resulting from items which are lost or delayed in transit, whether such transit is electronic, mail or otherwise, not for unauthorized use by others of such property. Agency will not be held liable for any incidental, consequential or indirect damages, including without limitation damages for loss of profits, business interruptions, loss of information, plagiarism, etc. Agency will not be held liable for typographical omissions or errors.
FORCE MAJEURE: In the event of “force majeure” (as defined below), Agency may terminate this Agreement without liability to Client, provided Agency refunds all amounts which Client has therefore paid to Agency not fully performed. For purposes of the Agreement, “force majeure” means circumstances or occurrences beyond Agency’s reasonable control, whether or not foreseeable at the time of signing this Agreement, in consequence of which Agency cannot reasonably be required to complete the Services or otherwise perform its obligations under this Agreement. Such circumstances or occurrences include, but are not limited to: war, civil war, insurrection, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, and non-availability of any permits, licenses and/or authorizations required by governmental authority.
EXPIRATION / MODIFICATION: The agreement shall remain in effect for the duration of the project or a period of three (3) months or until such time as one or the other party provides written notice of cancellation. This agreement may be modified or amended as necessary after negotiations initiated by either Party. If agreement is reached, only a written instrument signed by both parties will modify or amend this agreement.
NON-DISCLOSURE AND NON-SOLICITATION: Agency shall not directly or indirectly disclose to any person other than a representative of Client at any time either during the term of this agreement or following the termination or expiration thereof, any confidential or proprietary information pertaining to the Client, including but not limited to customer lists, contacts, financial data, supply sources, business opportunities for new or developing business, plans and models, or trade secrets.
GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of British Columbia without regard to conflicts of law principles. Agency and Client irrevocably submit to the exclusive jurisdiction of any province or federal court sitting in the region of British Columbia over any suit, action, or proceeding arising out of or relating to this Agreement, the exhibits and schedules attached hereto (and each party agrees not to commence any action, suit or proceeding relating thereto, except in such courts). Agency and Client each irrevocably waive, to the fullest extent permitted by law, any objection that such party may now or hereafter have to the laying of venue of any such suit, action, or proceeding brought in any such court and any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum. Final judgment in any such suit, action, or proceeding brought in any such court shall be conclusive and binding upon the parties hereto and may be enforced in any court in which a party is subject to jurisdiction by a suit upon such judgment provided that service of process is effected upon such party as permitted by applicable law.
EXECUTION AND REPRESENTATION ON AUTHORITY OF PARTIES/SIGNATORIES: This Agreement may be executed in counterparts and by digital approval or signature. The person approving this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement, and that the Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.

The terms and conditions of this Master Services Agreement may be modified or amended as necessary only by written instrument digitally signed by both representatives for Client and Agency.