Standard Terms & Conditions

Standard Terms & Conditions. These Standard Terms and Conditions shall form part of the agreement between Ebizmedia Inc. and the Client and shall together with the invoice and/or purchase order shall collectively form and be referred to as the “Agreement”.

Products and Services. The Client hereby retains Ebizmedia Inc. to provide, deliver and or perform the services and or products set out in this Agreement and any other services and or products that Ebizmedia Inc. and the Client may agree in writing from time to time.

Manner of Provision of Services and Products.  All services and products to be provided hereunder will be provided in a good and professional manner, diligently, honestly and in good faith, in accordance with all applicable laws, rules and regulations and in accordance with all generally accepted industry standards applicable to the provision of similar services and products.

Non-Exclusivity. The Client acknowledges and agrees that Ebizmedia Inc. is free to provide/supply services /products to clients of Ebizmedia Inc., provided the provision of such services/products is not otherwise in conflict with the provisions of this Agreement and does not impair the ability of Ebizmedia Inc. to provide the services/products as set out hereunder.

License Restrictions.  Any license granted herein does not permit you to, and you agree that you will not: (a) distribute, sell, transfer, market or otherwise commercially exploit the Software; (b) assign, sublicense, lease, distribute or transfer in any way the rights granted to you herein, without the prior written consent of Ebizmedia Inc. (which may be arbitrarily withheld); (c) use the Software for any use or in any manner other than as set out in the Documentation or herein; (d) copy the Software or the Documentation (except for back-up purposes); (e) remove any proprietary notices or labels on the Software or the Documentation; (f) provide, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use the Software for their own benefit or for the benefit of third parties; (g) modify, alter, decompile, disassemble or reverse engineer the Software or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatever.   This license does not grant you any right to any improvement, enhancement or update.

Compliance with Laws.  The Client agrees to adhere to all local, provincial, federal, municipal and international laws and regulations in connection with the design and development of its Website including, without limitation, laws relating to:

Developer may Refuse to Perform Services.  Ebizmedia Inc. may, in its exclusive and absolute discretion, refuse to perform any Services hereunder if Ebizmedia Inc. is of the opinion, acting reasonably, that the Client is in violation of any of the restrictions herein.

Responsibility for Website Content.  The Client agrees to be solely responsible for all  materials and content and all information, text, images, documents, pictures, audio, video, media, drawings, data, icons, photographs, charts, artwork, trademarks, tradenames, logos, graphics and other material provided by the Client or posted on, received by or created through the Client’s Website, even if transmitted, posted, received or created by someone other than the Client.

Compliance with Rules and Regulations.  The Client agrees to comply with all of Ebizmedia Inc.’ Internet policies, Acceptable Use Guidelines, rules and regulations as they may be established or amended by Ebizmedia Inc., in its sole and absolute discretion, from time to time. Ebizmedia Inc. shall post all policies, guidelines, rules, regulations and any amendments thereto on its website  http://www.ebizmedia.com/agreement.htm

Representations and Warranties. The Client hereby represents and warrants to Ebizmedia Inc., acknowledges that Ebizmedia Inc. is relying on such representations and warranties, and acknowledges that such representations and warranties will survive the termination or expiry of this Agreement:

Fees for Services and/or Products.    In consideration of Ebizmedia Inc. providing the services and/or products, the Client will pay to Ebizmedia Inc. the fees set out in this Agreement and any other fees or amounts upon which the parties may agree from time to time in writing in accordance with the payment schedule set out in this Agreement, however in the event that such terms are not set forth the terms of payment shall be as follows:

Ongoing Services. Ebizmedia Inc. will provide regular invoices to the Client, said invoices shall set out in reasonable detail the services provided by Ebizmedia Inc. during the period covered by the particular invoice and the amount due to Ebizmedia Inc. therefore. The Client shall be charged a monthly fee for the services and said fees shall be charged regularly to the credit card of the Client. In the event that a monthly charge is not accepted by the Client’s credit card, the monthly charge shall be subject to interest as set herein and be deemed a default by the Client and as such grounds sufficient for the suspension or termination of services by Ebizmedia Inc..

Interest. Any amounts not paid when due hereunder shall accrue interest at the rate of 14% per annum.

Taxes.  All charges and fees provided for in this Agreement are exclusive of and do not include any taxes, duties, or similar charges imposed by any government.  The Client agrees to pay or reimburse Ebizmedia Inc. for all federal, state, dominion, provincial, or local sales, VAT, use, personal property, import, export, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement.  If the Client fails to make any payment when due, Ebizmedia Inc. may suspend delivery of products, support services and any other services until the past due payment is made.

Expenses.  The Client will reimburse Ebizmedia Inc. for all out-of-pocket expenses relating to the provision by Ebizmedia Inc. of the services and product(s), including without limitation all travel, lodging and meals incurred by Ebizmedia Inc.’ personnel who are reasonably required to perform, install or deliver the services/products at a location other than their normal place of work.

Limited Warranty. Ebizmedia Inc. warrants to the Client that the Services and/or Products will be performed/supplied by Ebizmedia Inc. in a good, workmanlike and professional manner, in accordance with all applicable laws and regulations and in accordance with all generally accepted industry standards for the provision of similar services/products. Any services/products, hardware/software provided, if any, is not guaranteed and is provided on an “as is” and/or “as available” basis and Ebizmedia Inc. gives no representations, warranties or conditions of any kind, express or implied, including without limitation warranties as to uninterrupted or error free service, accessibility, privacy of files or electronic messages, security, merchantability, quality or fitness for a particular use or purpose and those arising by statute or otherwise, or from a course of dealing or usage of trade.

No Liability. Notwithstanding anything herein contained to the contrary, in no event whatsoever will Ebizmedia Inc., its directors, officers, employees, agents, contractors or affiliates, be liable for any claim for:
(a)        punitive, exemplary or aggravated damages;
(b)       damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of Client materials (including computer resources and stored data);
(c)        indirect, consequential or special damages of any kind;
(d)       contribution, indemnity or set-off in respect of any claims against the other party by any third party; or
(e)        any damages whatsoever related to interruption, delays, errors or omissions.

Limitation on Liability. Without limiting the generality of the terms herein the parties agree that maximum total liability of Ebizmedia Inc., its suppliers, directors, officers, agents, representatives, shareholders and employees, to the Client, for any claim whatsoever, under any circumstances, regardless of the cause of action and including without limitation claims for breach of contract, tort, negligence or otherwise, and the Client’s sole remedy therefore, shall be strictly limited to an award for direct, provable damages not to exceed the amount paid by the Client to Ebizmedia Inc. hereunder.

Exclusive Remedies.  Notwithstanding anything herein to the contrary, Ebizmedia Inc.’ entire liability, and the Client’s sole and exclusive remedy, for a breach of the warranty set out herein shall be, at Ebizmedia Inc.’ sole option, for Ebizmedia Inc. to:

Limitation on Time. Notwithstanding anything herein contained to the contrary, no action arising out of or relating to this Agreement, or Ebizmedia Inc.’ obligations hereunder, regardless of form, may be brought by the Client more than eight (8) months after the facts giving rise to the cause of action have occurred, regardless of whether those facts by that time are known to, or reasonably ought to have been discovered by, the Client.

Reasonableness of Limitations. The Client agree that the limitations contained in this section are reasonable in scope and that the terms and conditions of this Agreement have been negotiated taking into account such limitations.

(a)        the Software is licensed, not sold;

Intellectual Property. Unless specifically agreed to in writing by Ebizmedia Inc. a otherwise, the Client acknowledges and agrees that all intellectual property of every nature and kind whatever, created or arising pursuant to or in connection with the performance/delivery of the services/products, shall be and remain the sole and exclusive property of the Ebizmedia Inc. The Client agrees to assign any claim to or right, and hereby does assign, to Ebizmedia Inc., all right, title and interest to any inventions, discoveries, improvements, ideas, trademarks, works of authorship or other intellectual property developed, made, authored, conceived or arising pursuant to or in connection with the performance/delivery of the services/products, and further waives any moral rights with respect thereto, and agrees that such shall constitute confidential information of Ebizmedia Inc. and shall be and remain the exclusive property of Ebizmedia Inc..

Term. For continuous or ongoing services the term of this Agreement (the “Term”) is thirty (30) days from the date set out herein, unless earlier terminated in accordance with the provisions of this Agreement.

Automatic Renewal. Provided the Client is in compliance with the terms hereunder, this Agreement will automatically renew at the end of the current Term, for successive thirty (30) days, unless earlier terminated in accordance with the provisions of this Agreement. In the event of a renewal, the Client agrees and covenants to be bound by the terms and conditions of the amended or modified Standard Terms & Conditions then in force at the time of renewal. Ebizmedia Inc. shall maintain on its website, the most current and then in force version of these Standard Terms & Conditions.

Termination by Client. Without limiting any other rights or remedies available to the Client, at law or in equity or otherwise, the Client has the right to terminate this Agreement immediately and with notice to Ebizmedia Inc., if:
(a)        Ebizmedia Inc. is in breach or default of any of its obligations under this Agreement and such breach or default continues unrectified for thirty (30) days following the provision of written notice of such breach or default to Ebizmedia Inc.;
(b)       the Ebizmedia Inc. voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against Ebizmedia Inc. under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to Ebizmedia Inc.’ assets; or
(c)        Ebizmedia Inc. ceases to carry on its business.

Termination by Ebizmedia Inc.. Without limiting any other rights or remedies available to the Ebizmedia Inc., at law or in equity or otherwise, the Ebizmedia Inc. has the right to terminate this Agreement immediately and without notice to the Client, if:
(a)        Ebizmedia Inc. does not receive any payment hereunder when due and such non-payment continues for five (5) Business Days following Ebizmedia Inc.’s demand for payment in writing;
(b)       The Ebizmedia Inc. is in breach or default of any of its obligations under this Agreement, other then making a payment when due, and such breach or default continues unrectified for fifteen (15) days following the provision of written notice of such breach or default to the Client;
(b)       the Company voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against the Company under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to the Company’s assets; or
(c)        the Company ceases to carry on its business.

Termination Without Cause. Either party may terminate this Agreement at any time upon giving to the other party thirty (30) days written notice.

Effect of Expiration or Termination. Upon termination of this Agreement for any reason whatsoever:
(a)        the Client shall pay to Ebizmedia Inc. all amounts owing to Ebizmedia Inc. up to and including the date of termination of this Agreement;
(b)       the Client will immediately return to Ebizmedia Inc. all property of Ebizmedia Inc. in the Client’s possession or control;
(c)        Ebizmedia Inc. shall, at Ebizmedia Inc.’ option, destroy or return to Ebizmedia Inc. all Confidential Information of Ebizmedia Inc., without retaining copies thereof, and shall provide to Ebizmedia Inc. a certificate of a senior officer of the Consultant as to such destruction or return; and
(d)       all obligations under this Agreement that are intended to survive the termination of this Agreement shall survive and continue in full force and effect for the period intended.

Non-Interference. During the term of this Agreement and for one year thereafter, the Client agrees that neither it nor any of its principals, directors, officers, agents or employees will, directly or indirectly, in any way whatsoever, either individually or in conjunction with any individual, corporation or business: (a) solicit or attempt to solicit the services of, or entice away, any person employed by or otherwise providing services to Ebizmedia Inc. on a full-time, part-time or contractual basis; or (b) solicit, attempt to solicit, gain the business of, transact business with, or interfere in any way with any business relationship between Ebizmedia Inc. and any individual, corporation or business that during the Term was a customer or actively pursued prospective customer of Ebizmedia Inc..

Relationship. The relationship between the Client and Ebizmedia Inc. will at all times be one of independent contract and nothing herein shall be construed as implying an employment, partnership or joint venture relationship. The parties acknowledge and agree that nothing herein contained shall be construed as empowering the Client to act as a representative or agent of Ebizmedia Inc. and the Client is specifically prohibited from holding itself out as so acting or undertaking such action.

Survival. The termination of expiration of this Agreement will not affect the survival and enforceability of any provision of this Agreement which is expressly or impliedly intended to remain in force after such termination or expiration.

Assignment. This Agreement is personal in nature and may not be assigned by the Client without the prior written consent of Ebizmedia Inc.. Any attempt by the Client to assign any of the rights, duties or obligations of a party pursuant to this Agreement, without the prior written consent of Ebizmedia Inc., is void and of no effect. Ebizmedia Inc. may assign this Agreement upon providing the Client 60 days written notice of the assignment.

Dispute Resolution. Any dispute regarding the interpretation, compliance with or breach of this Agreement will be negotiated in good faith between the parties commencing upon written notice from one party to the other containing a summary of the dispute (the “dispute notice”). All negotiations will be confidential and inadmissible in any subsequent proceeding without both parties’ written consent. If the dispute is not resolved by negotiation within twenty (20) days following the receipt of the dispute notice, the parties will refer the dispute to a mediator acceptable to both parties for non-binding mediation. The costs of mediation shall be shared equally by the parties. If the dispute is not settled by mediation within fifty (50) days of receipt of the dispute notice, or if a mutually acceptable mediator is not selected within thirty (30) days of receipt of the dispute notice, the dispute shall be settled by binding arbitration as follows. Within sixty (60) days of receipt of the dispute notice, each party shall designate one arbitrator. Within seventy (70) days of receipt of the dispute notice, the two arbitrators so designated shall appoint a third arbitrator mutually acceptable to them, who shall alone hear and determine the dispute. If the two designated arbitrators are unable to agree upon a third arbitrator within seventy (70) days of receipt of the dispute notice, the third arbitrator shall be appointed by a Judge of the Ontario Court as soon as practicable. The arbitration shall be held in accordance with the provisions of the Arbitration Act (Ontario), with all hearings to take place in the Province of Ontario, unless otherwise agreed by the parties. Any judgment, decision or award rendered by such arbitrator shall be final and binding and shall not be the subject of any further court proceeding except in connection with the enforcement of any such award by a court of competent jurisdiction. The costs of arbitration, including legal fees and disbursements of the parties, shall be allocated by the arbitrator in the manner that the arbitrator, in his or her discretion, considers appropriate. This section does not affect the rights of the parties to seek injunctive relief when appropriate to enforce their respective rights hereunder.

Notice. Any notice or other communication required or permitted to be given pursuant to this Agreement shall be in writing, shall be addressed to the relevant party at the address set out in this Agreement for such party, and shall be given by facsimile or by prepaid first‑class mail or by hand‑delivery as hereinafter provided. Any such notice or other communication, if mailed by prepaid first‑class mail at any time other than during a general discontinuance of postal service due to strike, lockout or otherwise, shall be deemed to have been received on the fourth Business Day after the post‑marked date thereof, or if delivered by hand shall be deemed to have been received at the time it is delivered to the applicable address set out herein for such party to an individual at such address having apparent authority to accept deliveries on behalf of the addressee. Notice of change of address shall also be governed by this section. In the event of a general discontinuance of postal service due to strike, lock‑out or otherwise, notices or other communications shall be delivered by hand and shall be deemed to have been received in accordance with this section.

Further Assurances. The Client agrees that it will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as Ebizmedia Inc. may reasonably require from time to time for the purpose of giving effect to the provisions of this Agreement and will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of this Agreement.

No Limit on Additional Remedies. Nothing contained in this Agreement shall limit any other remedies which any party may have as a result of the default of the other party under this Agreement, and the parties agree that remedies for breach of this Agreement may be in equity by way of injunctive relief or specific performance, as well as for damages and any other relief available, whether in equity or in law.
Currency. In this Agreement, all amounts are stated and payable in Canadian currency, unless otherwise agreed to in writing by the parties.

Invalidity of Provisions. Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity of enforceability of any other provision hereof.

Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter of this Agreement. There are no warranties, representations or agreements between the parties in connection with such subject matter except as specifically set forth or referred to in this Agreement.

Modification and Waiver. This Agreement may not be modified unless agreed to in writing by Ebizmedia Inc.. No extension of any time limit granted by a party shall constitute an extension of any other time limit or any subsequent instance involving the same time limit. No consent by a party to, nor waiver of, a breach by the other, whether express or implied, shall constitute a consent to or waiver of or excuse for any other different or subsequent breach, unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused. This provision in way limits, impedes or prohibits Ebizmedia Inc. from the exercise of its unilateral and absolute right to amend, modify or otherwise alter its polices, guidelines, rules, regulations and these Standard Terms & Conditions.

Force Majeure. Ebizmedia Inc. will have no obligation to provide the services/products to the extent and for the period that Ebizmedia Inc. is prevented from doing so by reason of force majeure or any cause beyond its reasonable control, including without limitation the inability to use or the failure of any third party telecommunications carrier or other services.

Governing Law. This Agreement shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein. The Client hereby submits to the exclusive jurisdiction of the Province of Ontario in connection with this Agreement.

Enurement. This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors, affiliates and permitted assigns.