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terms + conditions governing design fee estimates
These terms and conditions (the “Terms and Conditions”) shall govern all design service rendered for a client (herein referred to as “you” or the “Client”) with Ashley Botten Design Inc., c/o/b as “ABD”, (herein referred to as “us”, “ABD”, and the “Service Provider” and together with Client, the “Parties” and each a “Party”) through any manner or medium, without limitation. By accepting the Design Fee Estimate with ABD, you agree to abide by these Terms and Conditions. ABD reserves the right to update or modify these Terms and Conditions at any time without prior notice or the consent of Client, provided that such changes do not materially impact the nature or scope of the Design Fee Estimate. For this reason, we encourage you to review these Terms and Conditions whenever you enter into any agreement or, place an order or purchase products from us.
The accompanying Design Fee Estimate and these Terms and Conditions comprises the entire agreement between the Parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
section 1.
design fee estimates
In these Terms and Conditions, a “Design Fee Estimate” includes the estimate for design services provided by ABD.
(a) Design Fee Estimates
Design Fee Estimates shall be issued by ABD and governed by these Terms and Conditions. Immediately upon the acceptance and execution of the Design Fee Estimate by the Client, the Client shall pay the corresponding deposit as specified in the Design Fee Estimate (the “Deposit”). ABD shall not conduct any work under the Design Fee Estimate unless and until the Deposit is received in full.
(b) Payment for Design Fee Estimates
ABD shall issue an invoice to the Client for fees due and owing under the Design Fee Estimate monthly for services completed in the immediately preceding month (each, an “Invoice”). Client shall pay all invoiced amounts due to ABD within fifteen (15) days from the date of such Invoice. As may be agreed to in the Design Fee Estimate, Client shall reimburse ABD for all reasonable expenses incurred in accordance with the Design Fee Estimate, within fifteen (15) days of receipt by the Client of an invoice from ABD accompanied by receipts and reasonable supporting documentation.
All payments under an Invoice shall be in Canadian Dollars, unless otherwise specified in the Design Fee Estimate. Should any amounts of an Invoice remain unpaid following the fifteen (15) day payment period, such amounts will be subject to an interest fee of sixteen (16%) percent per annum, or the highest rate permissible under applicable law, calculated and charged monthly. The Client shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with ABD, whether relating to ABD’s breach, bankruptcy or otherwise.
section 2.
general payment terms
ABD accepts all major credit, debit cards, online bill payment options, wire transfers and cheques. However, wire transfers and online bill payments options, are the preferred methods. Payments placed by cheque are subject to wait time associated with bank clearance. Any bank charges associated with wire transfers or online bill payment methods and exchange fees will be billed to the Client and shall be the sole responsibility of the Client. ABD does not offer financing on any of its Design Fee Estimates.
Credit card payments will be conducted through our third-party payment processor, currently STRIPE. STRIPE is fully PCI-DSS compliant.
ABD is not responsible and does not control the actions of STRIPE and is not liable for activities carried on by STRIPE.
section 3.
performance of services
With respect to any services under a Design Fee Estimate, the Client shall: (i) cooperate with ABD in all matters relating to the services and provide such access to Client’s premises, and other facilities as may reasonably be requested by ABD, for the purposes of performing the services; (ii) respond promptly to any ABD request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for ABD to perform services in accordance with the requirements of the Design Fee Estimate; (iii) provide such customer materials or information as ABD may request to carry out the services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the services before the date on which the services are to start.
ABD shall use reasonable efforts to meet any performance dates to render the services specified in the Design Fee Estimate, and any such dates shall be estimates only.
section 4.
taxes + duties
All estimates are subject to applicable taxes, and any duties. The Client shall comply and be responsible for all federal, provincial, state and local regulations, as applicable, and pay fees and taxes associated with any applicable tariffs, duties, customs, border and brokerage fees and or any fees associated with such jurisdiction.
section 5.
limitation of liability
ABD will not be liable for any damages occurring as a result of any breach of these Terms and Conditions resulting from any delay beyond the ABD’s commercially reasonable control, including without limitation, strike lockout, work stoppage, terrorism, act of God, or other delays beyond the ABD’s control.
If ABD’s performance of its obligations under the Design Fee Estimate is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, ABD shall not be deemed in breach of its obligations under the Design Fee Estimate or these Terms and Conditions or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
Other than as set out herein in writing, IN NO EVENT WILL ABD OR ANY OF ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO: (A) ANY BREACH OF THESE TERMS AND CONDITIONS (OR DESIGN FEE ESTIMATE), WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN BY CLIENT OR ABD, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; AND/OR (B) ANY INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU ON ITS WEBSITE, IN ITS CATALOGUES, OR AT A STORE LOCATION; AND/OR (C) FROM ANY ORDER OR PURCHASE FROM THE ABD, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR BUSINESS INTERRUPTION. ABD ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF ITS WEBSITE OR CATALOGUES.
Notwithstanding anything to the contrary in these Terms and Conditions, the entire liability of ABD to a Client under the Design Fee Estimate shall be limited to the lesser of: (A) the aggregate amounts payable to ABD for the preceding two (2) month period giving rise to the claim; or (B) the amount actually received by the ABD during the preceding two (2) month period giving rise to the claim.
The Client hereby agrees to fully release and hold the ABD harmless from and against any and all claims, demands, liabilities, losses, costs and expenses, including without limitation a Client’s misuse, poor or improper handling or care of the product(s).
section 6.
governing law + choice of forum
The Terms and Conditions and all Design Fee Estimates, including all schedules, attachments and appendices thereto, and all maters arising out of or relating to the foregoing, are governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to any conflict of laws principles which would result in the application of any other law. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to the Terms and Conditions or Design Fee Estimates, including all schedules, attachments, and appendices attached thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the courts of the Province of Ontario. Each Party irrevocably submits to the exclusive jurisdiction of such courts in any such action or proceeding. The parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
section 7.
compliance with law
Client shall comply with all applicable laws, regulations, and ordinances. Client shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Design Fee Estimate and as set out herein.
section 8.
termination
In addition to any remedies that may be provided under these Terms and Conditions, ABD may terminate this Agreement with immediate effect upon written notice to the Client, if the Client: (a) fails to pay any amount when due under an invoice; (b) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, liquidation, reorganization, or assignment for the benefit of creditors.
section 9.
waiver
No waiver by ABD of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by ABD. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising hereunder operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
section 10.
confidential information
All non-public, confidential or proprietary information of ABD, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by ABD to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with a Design Fee Estimate is confidential, solely for the use of performing the Design Fee Estimate and may not be disclosed or copied unless authorized in advance by ABD in writing. Upon ABD’s request, Client shall promptly return all documents and other materials received from ABD. ABD shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party.
section 11.
assignment
The Client shall not assign any of its rights or delegate any of its obligations under a Design Fee Estimate or these Terms and Conditions without the prior written consent of ABD. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Client of any of its obligations under the Design Fee Estimate or these Terms and Conditions. ABD may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of ABD’s assets or shares without Client’s consent.
section 12.
relationship of the parties
The relationship between the Parties is that of independent contractors. Nothing contained herein or the Design Fee Estimate shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
section 13.
severability
If any term or provision contained herein is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
section 14.
force majeure
No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term contained herein (or Design Fee Estimate) (except for any obligations of the Client to make payments to ABD hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, tsunami, fire, earthquake, or explosion; (c) epidemics, pandemics; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law, or actions; (f) embargoes, or blockades in effect on or after the date of this Agreement; (g) national or regional emergency; (h) strikes, labour stoppages or slowdowns, or other industrial disturbances; (i) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; (j) failure of any governmental or public authority to grant a necessary licence or consent; and (k) other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 14, the other Party may thereafter terminate this Agreement upon ten (10) days’ written notice.
Copyright
“ABD” is a trademark of ASHLEY BOTTEN DESIGN INC.