2. APPROVAL OF THE CLIENT’S CREDIT– The client acknowledges that this Contract is strictly conditional upon MacRAE’S’s approval of the client’s credit and authorizes MacRAE’S to conduct all usual enquiries with third parties regarding the client’s solvency and credit and to record in the client’s file and disclose to third parties information regarding the client’s credit.
3. TERM AND FULL PAYMENT– Unless otherwise stated, this Contract will continue in accordance with the monthly rate on the billing schedule provided. Upon written notice to MacRAE’S, the client may terminate this Contract on 60 days’ notice at any time. The client is responsible to MacRAE’S for full payment of all monthly fees and the client acknowledges that this clause is a material basis of this Contract and that such an obligation to pay constitutes an essential consideration of MacRAE’S’s undertaking to offer the Website Services for the fee agreed upon.
4. EARLY TERMINATION AND REFUSAL TO HOST– MacRAE’S may terminate this Contract and refuse to offer the Website Services and/or host Website, upon notice to the client, if the client is in default to pay any amount owed to MacRAE’S pursuant to this Contract or to any Contract entered into with MacRAE’S of if client breaches any other term hereof.
5. CONTENT MARKETING– MacRAE’S free incentives have no cash value. Any free blog posts or social media posts provided by MacRAE’S are restricted to MacRAE’S choice in writers, and consist of general blog topics written to drive traffic to the site or social media posts written to promote the blog(s). These posts are not necessarily technically specific and may not speak about the client’s particular business or area of expertise in detail. If any post does not receive approval from the client, it will not be posted. The client has the opportunity to re-write and submit for MacRAE’S to edit and/or distribute “as is” for no additional cost. Free external blog set up, free website hosting, and SSL Certification will only be completed when full website credentials are given to MacRAE’S for the ability to implement. Client agrees to allow MacRAE’S to use images, case studies, and statistics as they relate to this project as part of MacRAE’S public portfolio.
6. NO REPRESENTATIONS BY MacRAE’S & NO WARRANTY OF SUCCESS FOR THE CLIENT– The client acknowledges that, in order to promote its web services, MacRAE’S may, from time to time, convey data, including statistics, or other types of information, which illustrate the results obtained by certain groups of MacRAE’S clients; such data is, to the best of MacRAE’S’s knowledge, accurate and said data has been obtained from credible and independent sources. The client also acknowledges that such data is conveyed solely for informational purposes, that MacRAE’S does not conduct any analysis regarding the client’s business and that, consequently, the results obtained may vary considerably from client to client.
7. CLIENT’S WARRANTY– The client warrants that it is authorized to display the Website, and that the Website does not violate any law and that the Website Services will not violate any law applicable to the client. The client also warrants that it holds all permits or licenses which may be necessary, including any license to practice issued by any professional or other regulatory body exercising jurisdiction over the client’s activities. The client further warrants that it holds the rights to use the trademarks or trade names included in the Website and that such use does not violate any provision of any law or statute, including the Trade-Marks Act (Canada), the Copyright Act (Canada) and any other law or statute relating to intellectual property.
8. SMS NOTIFICATIONS AND FEEDBACK REQUESTS COMPLIANCE– The client acknowledges and agrees that MacRAE’S may send SMS messages to their customers at their request, for the purpose of providing notifications related to their services and requesting feedback related to the services they provide. The client represents and warrants that they have obtained all necessary consents from their customers to receive these SMS messages, and that such SMS requests are compliant with all applicable laws and regulations. You agree to indemnify and hold us harmless from any claims, damages, or liabilities arising from any alleged violation of such laws or regulations. Additionally, the client agrees that MacRAE’S send SMS messages to them directly for the purpose of providing notifications related to our services and requesting feedback related to the services we provide them, and that such messages may contain marketing or promotional content. The client and the client’s customers may opt-out of receiving these SMS messages at any time by replying ‘STOP’ to any message they receive from us. Standard message and data rates may apply.
9. LIMITED LIABILITY OF MacRAE’S AND THIRD-PARTY VENDORS– The client acknowledges that MacRAE’S produces, publishes, offers and hosts a very large number of websites, that errors may thus occur and that MacRAE’S would not be able to provide the Website Services and host the Website, on an economic basis, without the benefit of a limitation of liability clause. Consequently, the client also acknowledges that such a limitation of liability clause is a material basis of this Contract, that such a limitation of liability constitutes an essential consideration of MacRAE’S’s undertaking to offer the Website Services for the fee agreed upon. MacRAE’S’s liability with respect to this Contract and the products and services purchased under it shall not exceed the price of the portion of such product or service as to which liability arises and then only for the amount of such price paid during the relevant Initial Term or Renewal Term, as applicable, and MacRAE’S shall not be liable for any injury, loss or damage, resulting from the product or service. In no event shall MacRAE’S be liable for special, incidental or consequential damages, including, but not limited to, loss of profits, capital or business opportunity; downtime costs; or claims of customers of client. Notwithstanding any applicable statute of limitations to the contrary, any action by client relating to a claim hereunder must be instituted no later than two (2) years after the occurrence of the event upon which the claim is based. All of the foregoing limitations shall apply irrespective of whether client’s claim is based upon breach of contract, breach of warranty, negligence, strict liability, or any other legal theory. The client acknowledges that the present limitation of liability equally applies to third party vendors and contractors of MacRAE’S, if applicable.
10. MODIFICATION TO THIS CONTRACT BY MacRAE’S– The client acknowledges that MacRAE’S may, from time to time, unilaterally modify this Contract if such modifications do not substantially affect the rights and obligations of the client. The client is bound by any such modifications from the moment the client receives a notice to that effect. The current version of this Contract can be obtained by calling the MacRAE’S toll free number found on www.MacRaes.com.
11. PROPERTY AND TRANSFER OF WEB SERVICES– The client acknowledges that MacRAE’S owns the intellectual property rights related to the Website Services and undertakes not to reproduce same without MacRAE’S’s prior written consent. Upon full payment of all outstanding charges related to this Contract and upon full payment of a transfer fee, MacRAE’S will deliver to the client upon request HTML and/or video files for online video or websites delivered under this Contract provided that such delivery does not violate any Contracts or agreements MacRAE’S may have with third parties. Upon such transfer, MacRAE’S will grant the client a license to use the transferred files in the normal course of the client’s business.
12. CONFIDENTIALITY– Client agrees to keep confidential any and all information relating to MacRAE’S and its policies, including, without limitation, all quotations, discount policies and data and also agrees to conduct its business (including the Website) in accordance with all applicable laws, ordinances, rules and regulations of any applicable authority.
13. FORCE MAJEURE, ETC.– No liability shall result from delay in performance or non-performance in whole or in part if performance as agreed has been made impracticable by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid, or by the occurrence of a contingency the non-occurrence of which was a basic assumption on which this Contract was made, including, but not limited to, acts of God, fire, flood, accident, riot, war, sabotage, strike, labour trouble or shortage, breakdown or failure of equipment, or embargo. MacRAE’S’s (i) inability to obtain at prices and on terms deemed by it to be practicable any required good or service or (ii) incurring increased costs for compliance with regulations shall also be sufficient to relieve MacRAE’S of its obligation to perform hereunder. If any of such circumstances affect only a part of MacRAE’S’s capacity to perform, MacRAE’S shall have the right to allocate deliveries among all of its customers and its own requirements in a manner and at such times as MacRAE’S may determine.
14. NO IMPLIED WARRANTIES– EXCEPT AS EXPRESSLY MADE HEREIN, MacRAE’S MAKES NO WARRANTY OF ANY KIND EXPRESS OR IMPLIED INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS OF THE PRODUCT OR SERVICE FOR ANY PARTICULAR PURPOSE, EVEN IF THAT PURPOSE IS KNOWN TO MacRAE’S.
15. TAXES– Liability for all taxes, excises or other charges, imposed by any local, provincial, state or federal, or other authority, which have to do with or affect the goods or services herein ordered (except those based on the income of MacRAE’S), shall be assumed and paid by client. Client further agrees to indemnify and protect MacRAE’S against any and all such liabilities for taxes as well as any legal fees or costs incurred by MacRAE’S in connection therewith.
16. ENTIRE AGREEMENT – This Contract constitutes the entire Contract of sale and purchase of the product and service herein named. It is not assignable by client without the written consent of MacRAE’S. Except as provided herein, modification of this Contract shall be of any force or effect unless in writing signed by the parties. If any provision of the Contract is or becomes violative of any laws, or rule, order or regulation issued thereunder, MacRAE’S shall have the right, upon notice to client, to cancel such provision, without affecting the other provisions of this Contract, or to cancel this Contract in its entirety.
This Contract shall be governed by and construed in accordance with the laws of the Province of Ontario. Any lawsuit brought by client arising out of the transactions covered hereunder shall be instituted in the appropriate court located in such Province, and client further submits itself to the jurisdiction of said courts in the event MacRAE’S elects to institute any action in said courts.(b) All notices required or authorized to be given by either party hereunder to the other party shall be deemed validly given and served if in writing and delivered, faxed or deposited in the mails in a sealed envelope with sufficient postage affixed and properly addressed to the party to whom such notice is directed at the address of such party’s place of business as shown in the Contract. Any notice delivered by hand, or facsimile, receipt confirmed shall be deemed received on the day of such delivery (save and except where delivery is after 4:00 p.m. in the office of the recipient or is delivered on a day which is not a business day in which event such notice shall be deemed to have been received on the next business day), or where such notice is mailed, receipt shall be deemed to have occurred four (4) business days after mailing as aforesaid; provided that, in the event of disruption of normal postal service, any such notice shall be delivered or sent by facsimile. Either party may from time to time change its address for notification purposes by giving the other party written notice of the new address and the date upon which it will become effective.
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