WMSH Terms and Conditions
Acceptance by Client of service agreements (Agreement) issued by JDGEM Consulting Inc/We Make Stuff Happen, to which these terms and conditions are attached or by reference made a part of, shall constitute an agreement between Client and JDGEM Consulting Inc/We Make Stuff Happen with respect to the responsibilities of JDGEM Consulting Inc/We Make Stuff Happen and Client pursuant to the Agreement and these Standard Terms and Conditions (collectively referred to as the “Agreement”).
1.1 This Agreement shall be governed and construed in accordance with the laws of British Columbia, Canada, and the federal laws of Canada applicable therein. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from, or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated works, shall be instituted in the courts of the Province of British Columbia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding.
1.2 The parties each individually represent and warrant that each has full power and authority to enter into this Agreement and perform all of their obligations hereunder without violating any third party’s legal or equitable rights, or any applicable law. Further, CLIENT acknowledges having been given the opportunity to obtain independent legal advice with respect to the terms of this Agreement prior to its execution and confirms that it has sought, or has willingly waived the right to seek, such legal advice.
1.3 Except as otherwise set forth or referred to in this Agreement, this Agreement constitutes the sole and entire Agreement and understanding between the parties hereto as to the subject matter hereof and supersedes all prior discussions, agreements and understandings of every kind and nature between them as to such subject matter.
1.4 All payments are due upon delivery of an invoice. All payments are payable to “JDGEM Consulting, Inc.” by Interac transfer, EFT, or paid online via credit card. Credit card payments will include an administrative fee of 2.9% on the balance due.
1.5 WMSH reserves the right to engage a collection agency in respect of delinquent payments in its sole discretion. If collection proves necessary due to CLIENT’s failure to pay WMSH, CLIENT agrees to pay all legal or third-party involvement fees incurred in that process and a late payment penalty, compounded interest of 1% per month on the remaining amount due. All services under this Agreement will continue to be suspended until full payment has been received.
1.6 If CLIENT terminates the Project before the services are completed (as described in the scope of services), WMSH will issue an invoice for the full remainder of all fees, which are due and payable within 30 days of delivery of such invoice. The Project deposit is non-refundable.
1.7 Any additional work requested by CLIENT beyond the scope of services is billed at a rate of $160/hour CAD upon written approval from both parties for WMSH to commence such additional work.
1.8 Commencing as of the Effective Date and for a period of three (3) years following the completion or termination of the Project, CLIENT shall not, directly or indirectly, employ or offer to employ, call on, contract, or actively interfere with WMSH’s or any subsidiary’s relationship with, or attempt to divert or entice away, any employee or contractor of WMSH or any of its subsidiaries, nor shall CLIENT assist any other third-party in such activities.
1.9 Commencing as of the Effective Date and for a period of three (3) years following the completion or termination of the Project, CLIENT shall not, directly or indirectly, solicit, call on, contract, or actively interfere with WMSH’s customers or reference accounts if such solicitation, contract or interference is intended or could result in the customer obtaining services and/or products similar to those provided by WMSH from a third party or which could induce or attempt to induce a customer of WMSH to reduce or curtail such customer’s business with WMSH.
1.10 CLIENT represents and warrants that all elements of intellectual property, text, images or other artwork provided to WMSH are either owned by CLIENT, or CLIENT has received a valid license to use them and deliver them to WMSH for the purpose of the Project and CLIENT further represents that the use by WMSH of such assets do not infringe upon the confidentiality, intellectual property, copyright, trademark, rights of privacy, or other rights of any third-party. WMSH is not responsible for checking copyright, trademark, rights or licenses for any/ or all assets provided by CLIENT.
1.11 Either party may immediately terminate this Agreement by giving written notice to the other party if (a) the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction; (b) if the other party makes an assignment for the benefit of creditors if a trustee or similar agent is appointed with respect to any property; (c) in the case of CLIENT if CLIENT fails to make any payments pursuant to this Agreement when due; or (d) if the other party materially breaches its obligations under this Agreement, which default is not cured within thirty (30) days following written notice of such default to the defaulting party.
1.12 Upon termination of this Agreement, provided that there are no outstanding amounts then owing by CLIENT to WMSH, WMSH shall transfer, assign and make available to CLIENT all property and materials in its possession or control belonging to CLIENT. WMSH may retain digital copies of work produced to serve CLIENT in the future or demonstrate work completed for sales purposes. WMSH will not sell CLIENT work to a third party at any time.
1.13 WMSH does not guarantee that the Project will be error-free. Upon written notice by CLIENT to WMSH of any such errors, WMSH shall use commercially reasonable efforts to promptly address such errors that are within its control.
1.14 Subject to Section 1.16, WMSH agrees to indemnify and save harmless CLIENT against all expenses, losses, claims, actions, damages or liabilities, whether joint or several (including the aggregate amount paid in reasonable settlement of any actions, suits, proceedings or claims) to which CLIENT may become subject or otherwise involved in any capacity under any statute or law or otherwise insofar as such expenses, losses, claims, damages, liabilities or actions arising from any negligent act or willful acts or omissions or misrepresentations of WMSH that adversely affects the reasonable business interests of CLIENT, provided that notwithstanding the foregoing, WMSH’s obligations under this Section shall not be construed to require WMSH to provide indemnity for loss or liability to the extent it resulted from any negligent or willful acts or omissions or misrepresentations of CLIENT or CLIENT’s failure to comply with the terms of this Agreement.
1.15 Subject to Section 1.16, CLIENT agrees to indemnify and save harmless WMSH against all expenses, losses, claims, actions, damages or liabilities, whether joint or several(including the aggregate amount paid in reasonable settlement of any actions, suits, proceedings or claims) to which WMSH may become subject or otherwise involved in any capacity under any statute or law or otherwise insofar as such expenses, losses, claims, damages, liabilities or actions arise from any negligent or willful acts or omissions or misrepresentations of CLIENT in the course of WMSH providing the services contemplated in this Agreement, provided that notwithstanding the foregoing, CLEINT’s obligations under this Section shall not be construed to require CLIENT to provide indemnity for loss or liability to the extent it resulted from any negligent or willful acts or omissions or misrepresentations of WMSH that adversely affects the reasonable business interests
1.16 In no event will either party be liable under or in connection with this Agreement to the other party or any third party under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise, for any: (a) any lost profits, lost business, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate the digital marketing programs which include, but are not limited to website functions, website hosting, search engine results, social media results, digital marketing results, published content, or any tool used during the duration of the Project or campaigns which may include images, video and/or content; (b) increased costs, diminution in value or lost business, revenues or profits; and (c) loss of goodwill or reputation. In no event will either party’s aggregate liability arising out of or related to this Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, or otherwise exceed the total amounts paid to WMSH under this Agreement in the three (3) month period preceding the event giving rise to the claim.
1.17 CLIENT agrees if it proposes to reschedule a planned Project, Website, or other digital marketing-related meeting, CLIENT may only do so by notice in writing delivered to WMSH no less than 16 business days before the date of the scheduled event. If CLIENT delivers a notice of rescheduling 15 business days or less before the date of the scheduled event, Client will be responsible for payment of a) a Rescheduling Fee of $1,500 to partially off-set WMSH’s lost time and revenue as a result of reassigning its team members without adequate notice; and b) all Project expenses (including but not limited to, travel, venue rentals, equipment rentals and any other third party fees) that are non-refundable. The foregoing Rescheduling Fee and any Project expenses will all be due upon delivery of the applicable invoices, the Project will not recommence until such amounts are paid in full. WMSH will work closely with the CLIENT to find another or the next available window to restart the Project. Upon restart of the Project, the terms of this Section 1.16 shall apply in respect of any further proposed rescheduling by CLIENT.
1.18 CLIENT hereby agrees that the provision of WMSH’s services to CLIENT require CLIENT’s cooperation to ensure the Project progresses with, including but limited to, the timely delivery of proper assets, regularly scheduled meetings and CLIENT approvals. Non-cooperation by CLIENT will be considered a material breach of this Agreement. For the purposes of this section “non-cooperation” is defined as a non-response or insufficient response from the CLIENT point of contact to WMSH’s inquiries made by usual communication methods (telephone, email, etc) regarding the performance of this Agreement for a period exceeding 10 business days without prior notice to WMSH. It is further clarified that, in addition to said non-response or insufficient response, non-cooperation will be considered as such if CLIENT does not provide WMSH with a required response regarding materials submitted to CLIENT by WMSH during said time or within a reasonable period thereafter as determined by WMSH.
In the case of non-cooperation of CLIENT, if WMSH is required to pause a Project, CLIENT will automatically be subject to: a) a Non-cooperation Fee of $1,000 to partially off-set WMSH’s lost time and revenue as a result of reassigning its team members without adequate notice; b) a Rescheduling Fee of $1,500; and c) any Project expenses (including but not limited to, travel, venue rentals, equipment rentals and any other third party fees) that are non-refundable.
The Non-cooperation Fee, the Rescheduling Fee and any Project expenses, will all be due upon delivery of the applicable invoice(s) and the Project will not recommence until such amounts are paid in full. WMSH will work closely with the CLIENT to find another or next available window to restart the Project. Upon restart of the Project, the terms of this Section 1.15 shall apply in respect of any further non-cooperation by CLIENT.
For greater certainty, the provisions of Section 1.14 and Section 1.15 are mutually exclusive, and CLIENT may be subject to the payment of the fees set out under one or both of such Sections.
For a non-cooperation period exceeding 30 business days, WMSH will not return the deposit and it will issue an invoice for the remainder of the Project, including the Non-cooperation Fee and any Project expenses incurred.
Updated: October 27, 2023