Client Terms of Service
Aloomii Inc. is a corporation formed pursuant to the Canada Business Corporations Act (R.S.C., 1985, c. C-44) ("Aloomii", “we”, “us” or “our”). These terms of service (“Terms” or “agreement”) are incorporated by reference into all Aloomii client (“Client”, “you” or “your”) proposals and quotes (each a “Client Proposal”);
These Terms form a binding agreement between Aloomii and the Client upon the Client’s acceptance of a Client Proposal. For the purposes of these Terms, "Parties" means Aloomii and the Client and "Party" means either one of them. In consideration of the mutual promises and agreements set out below, the Parties agree as follows:
Services
1. Subject to these Terms and the corresponding Client Proposal, we agree to provide digital strategy services to you (the "Services"). The scope of the Services will be further described in the Client Proposal. You agree and acknowledge that aside from those services expressly listed in the Client Proposal, no other services are being provided unless agreed upon in writing (including via email) with us. Additional fees, at our then current hourly or fixed rates, shall apply to any services to be performed above and beyond those listed in the Client Proposal.
2. You agree that unless stated otherwise in a Client Proposal, any delivery times, budgets and prices quoted, including those in the Client Proposal, are estimates only. Factors which could impact the estimate include, for example, an expedited delivery schedule or a change in the scope of our work.
3. To the extent our Services include search engine optimization for keywords or paid keyword advertising related to your website, products or services, you agree and understand that we make no representations and grant no warranties as to search engine keyword ranking or conversion results, or that any results achieved will last for any specific duration of time.
4. While we may assist you or make recommendations as to a domain registrar, website hosting or other third-party providers, we do not register domains or host your website ourselves. In delivering our Services, we (and our subcontractors) may require administrative access to your domain registrar and website hosting accounts in order to publish your website or post content to your website. You agree to create such account access for us during the term of this agreement. However, you agree to limit our access to such third-party provider accounts as is necessary to perform the Services. Following the completion of our Services you agree to remove our account access and change any passwords we used to access such accounts.
5. For billing and other purposes, we reserve the right to require that you hold accounts with all third-party providers directly (including for example paid search advertising platforms like Google, Facebook Instagram and LinkedIn), in your name, and subsequently provide administrator account access to us and our employees and subcontractors, where necessary. In scenarios where Aloomii holds an account directly with a third-party provider, on the termination of this agreement, or an applicable Client Proposal, and upon
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our request, you agree to be assigned or transferred such accounts and/or take over or reimburse us for any and all payments associated with such accounts, at our election.
6. In the event we refer you to a third-party provider, such as a domain registrar, hosting or other provider, it shall be your obligation to perform your own due diligence on the third- party provider and such referral shall not be construed as an endorsement, or a representation as to the trustworthiness or quality of the third-party provider’s products or services. We will also use third-party providers, such as email and data hosting providers, website and social media platforms we deem necessary for carrying out our Services. If there are any vendors, software, systems or hardware which you would like us to use (or not use) they must be specified and agreed upon in the applicable Client Proposal.
7. We will perform the Services using its own personnel, however, we may also elect to subcontract all or any portion of the Services to third parties, whether for website development, design, content drafting, graphic design, videos, SEO, paid online advertising services, consultations or any other component of the Services.
8. You agree that we are providing our Services to you as an independent contractor and
not as an employee, joint venturer or partner of yours.
Fees, Expenses and Payment Terms
9. While you agree to pay any hourly fees and fixed fees we may quote in a Client Proposal, you agree that where we undertake work at your request, for which no Client Proposal applies, or which falls outside the scope of the Services agreed upon in a Client Proposal, you will pay us at our then current hourly rates, as updated from time-to-time.
10. In some cases, our Client Proposal may specify a commission or lead conversion fee which requires the tracking of successful sales arising, at least in part, from our Services. You agree to provide us with reasonable access to information and accounts necessary for tracking such commissions and lead conversions for the purpose of calculating our fees, including, for example, access to your customer relationship management or sales software.
11. All fees are subject to the addition of HST and all other applicable taxes.
12. You agree to reimburse us for any expenses incurred on your behalf which are either referenced in, or implied from, a Client Proposal, or which you otherwise provide your consent for us to incur.
13. Any fee quoted in a Client Proposal will be subject to an initial deposit, in an amount to be specified by us (the “Deposit”). We reserve the right to not perform any Services until such time as the Deposit is fully paid. You agree that the Deposit is non-refundable, unless, in our sole and absolute discretion, (i) we elect to grant you a full or partial refund; or (ii) we elect to not perform certain agreed upon Services. In no event will we refund any amounts for costs or expenses incurred by us on your behalf.
14. After the Deposit is paid, we invoice for our work both on a monthly basis and upon the completion of various stages of our Services. Aside from the Deposit, our invoices shall
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become due and payable seven (7) calendar days from the date they are sent to you via email. We reserve the right to holdback any deliverables until invoices are fully paid. In the event of any dispute arising from the amounts billed by us, you agree to promptly pay any undisputed amounts, if any, while amounts in dispute are settled. However, given the nature of the Services, we do not offer refunds on any fees or deposits paid to us.
15. We may also collect a credit card number via a third party payment processor and bill your credit card in accordance with these Terms and the corresponding Client Proposal.
Unpaid Invoices
16. You agree that interest on any unpaid invoices owing to us will accrue at a rate of two (2%) percent per month, compounded on any outstanding balance and to be added to your outstanding balance monthly, not in advance.
17. WITHOUT WAIVING ANY OTHER RIGHTS ALOOMII HAS, ARISING UNDER THIS AGREEMENT, AT LAW OR OTHERWISE, ALOOMII MAY SUSPEND ALL SERVICES AND REFUSE TO INCUR ANY ADDITIONAL EXPENSES ON YOUR BEHALF IN THE EVENT ANY BALANCE OWING TO ALOOMII IS MORE THAN FIFTEEN (15) CALENDAR DAYS IN ARREARS.
Your Content
18. We claim no intellectual property rights over the material and information you provide for building and publishing any website or posting to any social media account as part of the Services. However, in order to permit us to perform the Services, you grant us a worldwide, irrevocable license to use the materials, content, images, videos, text and information provided by you in building and publishing any website or social media content forming part of the Services.
19. You represent and warrant to us that all materials, content, images, videos, text and information you provide, for the purpose of being included in the Services, or which you or your representatives upload or post on any website or social media accounts, are either owned by you, or you have duly acquired a license to include such materials and information on the website or social media accounts.
20. You agree not to make any unauthorized use of, or to provide us with any confidential information or proprietary property of any third-party, including without limitation, any trademarks or copyrighted materials, unless you are lawfully entitled to do so and have duly acquired all rights necessary to provide such information or property to us for the purpose of including it in part of the Services. You accept full liability and responsibility for any and all content displayed on or linked to via any website built as part of the Services, or any social media account used in connection with the Services.
21. Unless stated or implied otherwise in the Client Proposal, we will claim no ownership of the domain names for the website(s) built as part of the Services. However, you agree that we have no obligation to assist you with registering or renewing any such domain names.
Third-Party Software and Providers
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22. If our Services include creating a website for you, Aloomii develops client websites using third party platforms like https://www.squarespace.com. Aloomii has no intellectual property ownership in the underlying website development platform software or website design themes.
23. We may also use third party software in connection with our social media management services, including for example, Sendible (https://www.sendible.com) offered by Sendible Limited and their related and affiliated entities worldwide. As part of our Services you may be required to create an account on the Sendible platform. While we may use a white label version of the Sendible software (with the Aloomii branding on it), unless we indicate otherwise, when you login and use a social media management platform in connection with our services, you are using a service provided by Sendible. You accept all risks associated with using the Sendible platform and software.
24. You shall be solely responsible for safeguarding your hosting, email, social media, Sendible and other account login information used in connection with our Services. We shall not be responsible or liable of any unauthorized access to such accounts. You accept all risks associated with using such third party providers and third party software.
Website Footers
25. If, as part of the Services we are developing a website for you, you agree that Aloomii shall be permitted to provide a notice, on the footer of each page on any website built as part of the Services, which refers to Aloomii as the builder of the website (for example, the text may state “Created by Aloomii Inc.” or something similar). Aloomii may also include a “Credits” link in the footer of each page, which will link to an external website with a description of Aloomii and its digital strategy services.
No Assignment of Intellectual Property
26. We and our independent subcontractors may, in the course of providing the Services, conceive, develop or contribute to material or information related to your business and operations, including, without limitation, intellectual property, copyright, trademarks, technical documentation, inventions (whether or not patentable), software, computer code, articles, videos, images, designs (whether or not patentable), regardless of the form or media, if any, on which such information is stored (referred to as “Proprietary Property”). It is agreed that nothing in these Terms shall be interpreted so as to assign, to you, any Proprietary Property which Aloomii or our independent subcontractors conceive, develop or contribute to in the course of providing the Services to you or which are otherwise delivered to you. All intellectual property and other rights of any kind in or relating to the Proprietary Property, including but not limited to all copyright, patent, trade secret and trademark rights shall remain the sole property of Aloomii and our independent subcontractors.
Grant of License
27. To the extent Aloomii, or our independent subcontractors, develop, as part of the Services, Proprietary Property which Aloomii owns, you are hereby granted a worldwide, non-exclusive, perpetual and non-sublicensable license, to use such work product for
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commercial purposes, and may further amend or create derivative works from such Proprietary Property, even after the term of this agreement.
Privacy, Personal Information and Security
28. You agree to our privacy policy related to the collection, storage and use of your personal information, which is incorporated by reference and available online at http://aloomii.com/privacy.
29. You agree not to provide us, our directors, officers, employees, agents or subcontractors with any personal information, or access to any personal information, unless doing so is necessary for the provision of our Services. While we do not foresee us needing access to any personal information you collect, where you provide us with any form of personal information, or access to personal information, you represent and warrant that you have obtained express and informed consent from the applicable individuals to provide us with that information, or make it accessible to us. You agree to have your own privacy and cookie policy posted for end-users of the website which complies with all applicable laws, rules and regulations.
30. To the fullest extent permitted by law, in no event will Aloomii, our directors, officers, shareholders, employees, subcontractors, agents, suppliers, or licensors be liable, howsoever caused, for the loss or theft of personal information or any damages caused by the unlawful access to, or breach of any software or systems created by, administered by, used by, or which Aloomii and our subcontractors were provided access to. If Aloomii is to be responsible for implementing any specific security safeguards or encrypting any data or personal information, it is your obligation to include such requirements in the applicable Client Proposal.
Data Backups
31. Unless stated in a Client Proposal, we shall not be responsible for backing up any data or information, including website files, articles, videos, images, social media posts or other content or other deliverables, which we created, control or have access to in providing the Services. You should ensure you have your own processes in place to regularly backup any data or other information provided to or by us as part of the Services.
Acceptance of Risk
32. Unless stated in a Client Proposal, our Services are provided "as is" without any representations or warranties of any kind, including any implied warranties or conditions of merchantability or fitness for a particular purpose. You accept all risks associated with using the work product arising from the Services, and relying on the technology and services of each subcontractor and third-party provider. Without limiting the foregoing, we do not represent or warrant that any websites delivered as part of the Services, if applicable, will be uninterrupted, secure or error-free.
LIMITATION OF LIABILITY
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33. Aside from any direct claims arising from the overpayment of fees for the Services, you agree that, to the fullest extent permitted by law, in no event will Aloomii, our directors, officers, shareholders, employees, affiliates, licensors, subcontractors or agents be liable, howsoever caused, including by negligence or otherwise, for any damages or losses suffered by you, regardless of legal theory or the type of damages or losses and whether or not Aloomii was warned of the possibility of such damages or losses and whether those damages or losses were foreseeable or not.
34. Notwithstanding any other section of this agreement, in the event the above limitations on liability are not upheld by a court or arbitrator of competent jurisdiction, for any reason, you agree that in no circumstances shall our aggregate liability for any and all claims relating to or in any way arising from these Terms, a Client Proposal or our relationship with you, be more than the amounts you have paid to us over the preceding three (3) months from the date you first raised your claim with us, in writing.
INDEMNIFICATION
35. You agree to indemnify Aloomii, our directors, officers, employees, shareholders, agents, representatives, licensors and subcontractors, and to defend and hold each of them harmless, from any and all claims and liabilities (including reasonable legal fees) which may arise from or in connection with, (i) your breach of any provision of these Terms, or any Client Proposal or document or policy incorporated by reference; (ii) a data breach, or the loss or theft of data, including but not limited to personal information data, whether stored by a third-party provider or otherwise, so long as Aloomii was not the sole cause of such data breach through its own gross negligence; (iii) your, your staff, subcontractor(s) or users causing or contributing to the breach of any third-party rights, or causing or contributing to any damage, loss, personal injury or death suffered by Aloomii, its employees or any third-party; (iv) any breach of a representation or warranty made by you, or your staff, representatives, subcontractors or agents, either in these Terms or otherwise; (v) any damage or loss incurred by an end-user of your website or any other work product delivered as part of the Services; or (vi) your or your staff, subcontractors or website users failing to comply with any applicable laws, rules or regulations.
Term and Termination of the Agreement
36. Unless terminated earlier in accordance with these Terms, the duration of this agreement shall be as specified in the Client Proposal. Where no term is specified in the Client Proposal, you agree that the term of this agreement shall end upon the completion of our Services and the full and final payment of all our fees for such Services.
37. The term of this agreement shall also be deemed to automatically renew or recommence, as applicable, in the event one or more client proposals is entered between the Parties, after the initial term, or in the event additional services are agreed upon, even if no new client proposal document is signed by the Parties.
38. Notwithstanding any other provision of these Terms or any Client Proposal, Aloomii shall be permitted to terminate any outstanding Client Proposal or Services, or otherwise cease undertaking or providing services to the Client on fifteen (15) calendar days’ written notice to the Client.
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Post-Termination
39. Any terms or conditions in this agreement or any Client Proposal, which by their nature extend beyond the expiration or termination of this agreement or any applicable Client Proposal, shall remain in full force and effect until performed and fulfilled. Without limiting the foregoing, any provisions of this agreement concerning the matters listed below shall remain binding even upon the termination of this agreement or any Client Proposal: (a) all provisions relating to the ownership and licensing of intellectual property; (b) any provision restricting or limiting a Party’s liability or imposing indemnification obligations; (c) any other terms or conditions which expressly refer to obligations remaining in force post-termination; and (d) all other terms necessary to give business efficacy to this agreement, including for example, interpretive provisions, choice of law and dispute resolution provisions.
40. In the event Aloomii has incurred any expenses, or has subscribed to any services, software or other expenses at the Client’s request, which will continue beyond the termination date, the Client agrees it shall be fully liable for, and shall promptly pay for, such expenses.
Other Provisions
41. Conflicting Terms. In the event of a conflict between these Terms and a Client Proposal, these Terms shall govern and prevail unless the Client Proposal expressly states otherwise, and clearly intends to override or take precedent over a provision of these Terms.
42. Notices: Any notice, direction or other communication required or permitted to be given to a Party shall be in writing and shall be sufficiently given if sent by email to the other party at such email address used during the term of this agreement or which they otherwise provided for notices or ordinary communications.
43. Assignment: The rights and obligations of the Client under these Terms or any Client Proposal cannot be transferred, assigned, or sublicensed to a third party without the prior written consent of Aloomii. This agreement and any Client Proposal shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
44. Governing Law: These Terms, any Client Proposal and the relationship between the Parties shall be exclusively governed by and construed in accordance with the laws of the Province of Ontario, Canada and any Canadian federal laws applicable therein.
45. Dispute Resolution. If any dispute arises between the Parties relating to the application, interpretation, implementation or validity of this agreement or a Client Proposal, the Parties agree to resolve the dispute by arbitration at ADR Chambers using the ADR Chambers Expedited Arbitration Rules (see https://adrchambers.com/expedited- arbitration/). The parties agree that the ADR Chambers Expedited Arbitration Rules give the parties a fair opportunity to present their case and respond to the case of the other side. The arbitration shall be held in Toronto (or in writing or by video conference at the election of the arbitrator) and shall proceed in accordance with the provisions of the
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Arbitration Act (Ontario). Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction.
46. Entire Agreement: These Terms and any Client Proposal entered between the Parties constitutes the entire agreement between the Parties with respect to the subject matter of these Terms and the Client Proposal. Aside from the addition of new services and additional fees, which may be agreed upon between the parties via email, these Terms may only be amended by a written instrument signed by both parties.
47. Interpretation: If any ambiguity or question of intent arises with respect to any provision of these Terms, a Client Proposal or the terms and any document or schedule incorporated by reference, they shall be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favouring or disfavouring either party by virtue of authorship of any of the provisions.
48. Severability: The invalidity or unenforceability of any provision or part of any provision of these Terms, all Client Proposals, documents and schedules incorporated by reference, shall not affect the validity or enforceability of any other provision or part thereof, and any such invalid or unenforceable provision or part thereof shall be deemed to be separate, severable and distinct and no provision or part thereof shall be deemed dependent upon any other provision or part.
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