By accepting the terms and conditions, the Company agrees with WEB2PRINT TECH INC. (“WTI”) a corporation incorporated under the laws of Ontario and having an office at 335 Steelcase Road East, Markham, Ontario, L3R 1G3 to the following:
(1) WTI operates its website (the “WTI Website”) and provides a web based printing services business through that website.
(2) Company operates its website (the “Company Website”) and sells printed products to customers at retail through that website.
(3) Company wishes to utilize WTI’s online order fulfilment service in accordance with the terms of this Agreement.
IT IS AGREED as follows:
1. Definitions and Interpretation
1.1 In this Agreement the following terms shall have the following meanings:
“Business Day” means any day other than Saturday or Sunday that is not a bank or public holiday in the province of Ontario;
“Commencement Date” means the date the terms and conditions were accepted on behalf of Company;
“Confidential Information” means all business, technical, financial or other information created or exchanged between the Parties in the course of fulfilling their obligations under this Agreement;
“Current Term” means the Term that the Parties may be in at any given time;
“Sale” means each order placed on the Company’s website through the WTI online ordering system;
“Intellectual Property Rights” means any rights subsisting in a copyright work, trade mark, patent or design;
“Standard Fees” means the fees payable for the use of the online order fulfilment service as provided by WTI under schedule 1 of this agreement; and
“Term” means the term of this Agreement, during which WTI will provide the Company with the online order fulfilment service system under the terms and conditions set out in this Agreement
1.2 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.3 Words imparting the singular number shall include the plural and vice versa.
1.4 References to any gender shall include the other gender.
2. Linking Arrangements
2.1 Company shall establish and maintain a hypertext link from the Company Website to WTI Website using the URL specified in at the beginning of the Agreement.
2.2 All links established under this Agreement shall be either in plain text or shall be applied to graphical material supplied by WTI for that purpose.
2.3 Company may not, without the prior written authorisation of WTI, use any framing for links to the WTI Website.
2.4 Company shall ensure that all links to the WTI Website remain functional and up-to-date. If WTI wishes to change the destination of a link maintained by Company it shall inform Company of the change in writing or by email, providing at least three (3) Business Days’ notice and specifying the date that such changes shall become effective.
3. Fees & Payment
WTI hereby agrees to pay the Standard Fees, as appropriate, set out in Schedule 1 to this Agreement in accordance with the terms and conditions set out in that Schedule.
4. Site Maintenance and Content
4.1 Each Party shall be exclusively responsible for maintaining and updating its own website. Subject to the provisions of this Section 4 and to Sub-section 2.4 above, neither Party shall have any obligations to the other Party in relation to the maintenance or content of their website.
4.2 Neither Party may host any content that is unlawful, obscene, defamatory, or that infringes any other third party rights whatsoever.
4.3 Neither Party shall be under any obligation to pre-screen any content added to their website by third parties; however in the event that either Party receives from the other a written notification of any content that falls within that described in Sub-section 4.2 of this Agreement, such content must be removed within five (5) Business Days of receipt of such notice.
5. Intellectual Property
5.1 Unless otherwise indicated, WTI is the sole and exclusive owner of all Intellectual Property Rights (“IPRs”) in WTI Website including, but not limited to: all code, text, sound, video, graphics, photographs and other images that form a part of WTI Website. WTI shall also be the sole and exclusive owner of all IPRs which may subsist in any supporting documentation which shall include, but not be limited to, site plans, maps, design sketches and other preparatory material.
5.2 WTI shall be the sole and exclusive owner of all IPRs which may subsist in all future updates, additions and alterations to WTI Website, such material including any supporting documentation.
5.3 Unless otherwise indicated, Company is the sole and exclusive owner of all IPRs in Company Website including, but not limited to: all code (other than WTI’s codes), text, sound, video, graphics, photographs and other images that form a part of the Company Website. Company shall also be the sole and exclusive owner of all IPRs which may subsist in any supporting documentation which shall include, but not be limited to, site plans, maps, design sketches and other preparatory material.
5.4 Company shall be the sole and exclusive owner of all IPRs which may subsist in all future updates, additions and alterations to Company Website, such material including any supporting documentation.
6. Representation and Warranties
6.1 WTI hereby represents and warrants that:
6.1.1 WTI Website does not and will not contain any content that is unlawful, obscene, defamatory or that infringes any other third party rights whatsoever;
6.1.2 WTI Website is and shall remain functional and, subject to reasonable downtime for maintenance or third-party access restrictions, accessible to all users of the internet; and
6.1.3 WTI has the right to grant the web-to-print licence and that the granting of such licence does not infringe the rights of any third party.
6.2 Company hereby represents and warrants that:
6.2.1 Company Website does not and will not contain any content that is unlawful, obscene, defamatory or that infringes any other third party rights whatsoever; and
6.2.2 Company Website is and shall remain functional and, subject to the reasonable downtime for maintenance or third-party access restrictions, accessible to all users of the internet.
7. Term and Termination
7.1 This Agreement shall come into force on the Commencement Date and shall continue in force for a period of one (1) year from that date (the “Initial Term”). Following the Initial Term, this Agreement shall be renewed automatically for successive periods of one (1) year (each a “Renewal Term”) unless and until terminated in accordance with this Section 8.
7.2 Either Party may terminate this Agreement by giving 30 Business Days’ prior written notice to the other.
7.3 Upon the termination of this Agreement for any reason, the Company shall remove the html code for the online ordering fulfilment service as established under the terms of this Agreement.
7.4 Upon the termination of this Agreement for any reason, all licenses granted herein shall also terminate.
7.5 Notwithstanding any other provision of this Agreement, it shall not be a breach of WTI’s obligations under this Agreement if WTI suspends the functionality of its website to facilitate any repairs, updates or maintenance to any of its systems.
Each Party hereby agrees to indemnify the other against any and all liability, loss, damage, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by that party whether direct, indirect or consequential arising out of any dispute or contractual, tortious or other claims or proceedings brought by a third party resulting from the negligence or knowing misconduct of the other Party provided that:
8.1 the indemnified Party gives written notice to the indemnifying Party of any claim or proceeding as soon as reasonably possible following receipt of it;
8.2 the indemnified Party makes no admission of liability and gives the indemnifying Party sole authority to defend or settle the claim or proceedings at the latter’s cost and expense; and
8.3 the indemnified Party gives the indemnifying Party all reasonable assistance in connection with any such claims or proceedings at the cost and expense of the indemnifying Party.
9.1 Neither Party shall be liable to the other for any indirect or consequential loss that Party may suffer even if such loss is reasonably foreseeable or if either Party has been advised of the possibility of the other Party incurring it.
9.2 Either Party’s entire liability to the other in respect of any breach of its contractual obligations (other than the payment of the Standard Fees), any breach of warranty, any representation, statement or tortious act or omission including negligence arising under or in connection with this Agreement shall be limited to $1,000.00.
9.3 Notwithstanding any other provision in this Agreement, neither Party’s liability to the other for death or injury resulting from his own negligence or that of his employees, agents or sub-contractors shall not be limited.
10.1 Each Party (a “Receiving Party”) shall keep the Confidential Information belonging to the other Party (a “Supplying Party”) confidential and secret and shall not use or disclose or make the Confidential Information available, directly or indirectly, to any person other than its officers and employees who need the Confidential Information to enable the Receiving Party to perform its obligations under this Agreement and provided that such officers and employees are also obliged to keep such Confidential Information confidential and secret. The foregoing obligations shall not apply to any information acquired by the Receiving Party which:
10.1.1 at the time of its acquisition was in the public domain; or
10.1.2 at a later date comes into the public domain through no fault of the Receiving Party.
10.2 Each Party hereby agrees and undertakes:
10.2.1 that all Confidential Information shall be and shall remain at all times the sole and exclusive property of the Supplying Party;
10.2.2 that its right to use Confidential Information shall wholly cease upon the termination of this Agreement; and
10.2.3 to return to the Supplying Party on termination of this Agreement all material embodying Confidential Information (including information stored on digital media) or any part thereof and all copies thereof.
11. Force Majeure
Neither Party to this Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to, power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid, or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of the Agreement. The remainder of the Agreement shall be valid and enforceable.
Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested) to the respective Parties as follows:
If to WTI:
335 Steelcase Road East
Markham, ON L3R 1G3
If to the Company:
The address and contact particulars submitted by Company.
14. Entire Agreement
14.1 This Agreement embodies and sets forth the entire agreement and understanding between the Parties and supersedes all prior oral or written agreements, understandings or arrangements relating to the subject matter of this Agreement. Neither Party shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in this Agreement, save for any representation made fraudulently.
14.2 Unless otherwise expressly provided elsewhere in this Agreement, this Agreement may be varied only by a document signed by both of the Parties.
15.1 Relationship Between the Parties
The relationship between the Parties shall be that of an independent Contractor and Client. This Agreement shall not create any partnership, joint venture, agency, fiduciary, or employment relationship between the Parties.
15.2 No Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The relationship between the Parties under this Agreement is and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.
16. Dispute Resolution (Arbitration)
It is agreed that where any dispute or difference relating to this Agreement arises between the Parties that matter shall be referred to the arbitration of a single arbitrator to be agreed between the Parties pursuant to the Arbitrations Act (Ontario).
17. Law and Jurisdiction
17.1 This Agreement shall be governed by the laws of Ontario and the applicable laws of Canada.
17.2 Any dispute between the Parties relating to this Agreement shall be fall within the jurisdiction of the courts of Ontario in Toronto.
Standard Fees & Payment
(a) $299.00 as a setup fee (subject to change from time to time)
(a) $99 per month (subject to change from time to time)
(a) Calculation of Commission. WTI shall pay to Company a Commission Fee calculated by WTI in good faith at a rate set by the client (the “Markup”) on the system on the sale received by WTI. A deduction of 5% will be deducted on the total sum of the commission(s). For greater certainty, commissions are not calculated on taxes and or shipping charges.
(b) Changes to the Rate by WTI. WTI shall be at liberty to alter the Rate to a different rate on sixty (60) days prior written notice of any changes to the Rate.
(c) Payment. Except as provided below, any Commission Fee accrued and any Payments to the Company for a given month shall be paid by WTI at the end of the subsequent month
(d) If the Company has elected to receive Commission Fees and payments through cheque, there is a $25 Commission Fee minimum for each payment
(e) No Payment of Commission Fee. The Company will not be eligible to receive a Commission Fee for, and WTI will not pay a Commission Fee when:
(i) such Commission Fee results from a manipulative, false, or erroneous order, including, but not limited to, any order obtained by a fraudulent or deceptive program, device, or scheme, artificial mechanism, or the use of Company’s employees to generate a false order;
(ii) such Commission Fee results accidentally from a duplicate sale; or
(iii) the sale underlying such Commission Fee results in a return, cancellation, or refund, or when payment is not received by WTI (each, a “Charge-back”).
(f) Adjustment of Commission Fee. Any Commission Fee, or portion thereof, that has been paid to the Company but later results in a Charge-back will be deducted from the Company’s next Commission Fee.