Master Services Agreement

Upon execution by the parties below, the following terms and conditions, together with any Attachments shall constitute the Master Services Agreement (“Agreement”) between Field Creative Inc. (“Contactor”) and CLIENT_LEGAL_NAME, an STATE_OF_INCORPORATION TYPE_OF_LEGAL_ENTITY, located at CLIENT_ADDRESS (“Client”) and shall be effective as of _______________________ (the “Effective Date”).

1. Definitions

1. AS-IS Condition means all Developed IP created, developed, and/or customized specifically for Client and delivered to Client during the Term will be provided in “AS- IS” condition and all representations, warranties, and other guarantees shall not apply and are hereby disclaimed.
2. Attachments means any schedule attached hereto in the form of a Project Description or similar document executed by the parties during the term of this Agreement.
3. Client Content means all materials and information, including documents, data, specifications, software, copy and content, know-how, photographs, drawings, typefaces, and illustrations and technology that are directly or indirectly provided to Contractor by or on behalf of Client in connection with this Agreement, whether or not the same: (a) are owned by Client, a third party, or in the public domain; or (b) qualify for or are protected by any Intellectual Property Rights.
4. Done means the shared understanding of expectations that the Developed IP must satisfy in order to be in usable condition. Achieving this level of completeness requires Contractor to perform a list of tasks, as further described in the Project Description.
5. Intellectual Property Rights means any and all rights arising in Canada or any other jurisdiction throughout the world including (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and works of authorship (whether copyrightable or not), including computer programs, mask works, and rights in data and databases, (d) trade secrets, know-how, and other confidential or proprietary information, and (e) all other intellectual property, in each case whether registered or unregistered, and including all registrations and applications for such rights and renewals or extensions thereof, and all similar or equivalent rights or forms of protection in any part of the world.
6. Project means any project for the development and delivery of custom Developed IP requested by Client under this Agreement pursuant to the Project Description.
7. Project Description means a living document substantially in the form attached hereto as Exhibit A entered into by the parties to guide the development process. The Project Description shall describe the high-level concept and life-cycle of the Project and (i) the flexible scope of the Services to be performed by Contractor, (ii) the obligations of each party with respect to the Project, and (iii) the expected fees to be paid by Client to Contractor for the Services performed (“Fees”).
8. Contractor Components means all proprietary tools, ideas, concepts, processes, methodologies, software, and know-how developed, acquired, or obtained by Contractor prior to or during the course of this Agreement, some of which Contractor may use to perform the Services. Contractor Components include without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as those contained in social media campaigns, website design, architecture, layout, navigational and functional elements.
9. Contractor Drafts means draft concepts, notes, drawings, designs and text or other alternate or preliminary designs and documents, both electronic and traditional, developed by Contractor and which may or may not be shown and or delivered to Client for consideration but do not form part of the Developed IP.
10. Services means all professional design and development services and/or products provided by Contractor to Client under this Agreement or any Attachment that are billed on a time and materials basis, as more fully described and otherwise further defined in this Agreement or such Attachment. Services may include but are not limited to: (i) design, development, implementation, enhancement and maintenance of computer hardware, software and application systems; (ii) deliverable items to be delivered under an Attachment (e.g., product strategy documentation and technical blueprint documentation delivered to Client during the Term); and, any (iii) upgrade services or change services (collectively, the “Developed IP”).
11. Source files means the editable files that may form the basis of the Developed IP. For example, these could include custom font files, Figma files, audio files, video files, or files from Adobe Photoshop Creative Suite. Source files can also be referred to as raw files.
12. Third Party Materials means materials and information, in any form or medium, including any software (including open-source software), documents, data, content, specifications, products or equipment that are not proprietary to Contractor.

2. Project Description

1. Project Description. The requirements listed in the Project Description serve only as starting point to describe the general scope of work of the Project. From time to time, Contractor will stop and check progress against expectations, and possibly adjust the Project Description. Client thus understands that Contractor's obligation to perform the Services is subject to adjustment up to Termination or Expiration of this Agreement.
2. Changes to Project Description. Contractor welcomes changes throughout the Project. To support a flexible project design and timeline, Contractor reserves the right to modify the Project Description from time to time during the term hereof upon reasonable notice to Client and/or upon Client's submission of a written request to modify (email is acceptable). Contractor shall set forth, at a minimum, a written description of any changes or additions to the Services and the estimated Fees and Expenses. Any changes duly made to the Project Description in accordance with this Section 2.2 will be deemed an amendment to the Project Description incorporated herein and take effect immediately.
3. Conflicts.  Any conflict between the terms of this Agreement and the terms of a Project Description or any Attachment will be resolved in favor of this Agreement.

3. Project Management

1. Primary Contact.  Contractor and Client will each provide one primary contact for the duration of the Project. The Client contact will: (i) respond to requests from Contractor on a timely basis; (ii) be present or available during regular business hours to provide information and assistance to Contractor; (iii) provide Contractor with timely and accurate information and documentation as requested from time to time, including but not limited to Client Content; and, (iv) promptly review all status reports and invoices as further provided in this Agreement. Each party shall designate their respective contact in the Project Description. Any change to these persons shall be notified to the other party in writing as soon as practicable.
2. Meetings.  Client will ensure that key stakeholders for Client will attend scheduled status meetings with Contractor either in-person or via teleconference to exchange information, assess work in progress, confirm schedules, identify and resolve issues with the Project, or otherwise alter the Project Description. Failure by Client to attend such status meetings may result in delays in the Project timeline, and may constitute a Client Delay (as defined below).

4. Fees, Expenses and Taxes

1. Fees.  All Fees for the Services shall be billed on a time and materials basis. Client shall pay the Fees at the rates as set forth in the Project Description.
2. Expenses.   Client is responsible for all additional incidental costs (e.g., services for which there is not a labor category specified in the Agreement, travel (including airfare, car rentals, taxi or other car service, hotels and meals), computer usage materials that enter directly into the Developed IP, hosting fees, infrastructure fees, software licensing fees, typefaces, imagery, printing, font or otherwise) that are deemed necessary by Contractor to perform the Services or furnishing the Developed IP. Contractor will not be responsible for any delay that results from Client’s failure to make timely payment of all hosting and ongoing infrastructure fees.
3. Payment of Fees and Expenses.  All amounts payable hereunder will be invoiced and will become due by Client on the schedule provided in the Project Description.
4. Unpaid Fees.  Any invoice that is unpaid when due will accrue interest at 2% monthly, but not to exceed the maximum rate permitted by law. In the event that an invoice is not paid by the Client when due, Contractor may suspend performance under this Agreement until all overdue invoices and any other amount owed hereunder has been paid, in addition to and not in limitation of other available remedies under this Agreement or at law. All times estimated for performance or delivery may be extended by the number of days payments are late, at Contractor's discretion.
5. Invoice Disputes.  Contractor will use commercially reasonable efforts to (i) maintain accounting records in connection with the Services provided and (ii) periodically submit to Client a written status report describing its activities (including hours billed). The precise content, schedule, and format of the status report shall be determined by the parties in the Project Description. It is Client’s responsibility to review each status report and invoice promptly upon receipt. Client shall notify Contractor in writing within forty-eight (48) hours of the invoice date of any dispute as to the amount or validity of the invoice. If Client fails to deliver such notice in the allotted time, Client shall be deemed to have consented to the charges therein. Notwithstanding anything else herein, Client shall pay the undisputed portion of any disputed invoice within the time for payment thereof.
6. Taxes.  Client will pay all sales, use, property, ad valorem, value added or similar taxes imposed as a result of the Services provided by Contractor hereunder, other than taxes based on Contractor's income, gross receipts, withholding taxes and personnel-related taxes.
7. Non-Binding Estimates.  Client acknowledges that Contractor makes no estimate of Project cost or the start and completion date other than as set forth in the Project Description. Client understands that any such estimate does not bind Contractor and is provided only as a good-faith approximation based on information furnished to Contractor by Client. As a result of Contractor’s flexible software development approach that allows for changing requirements, methods, and designs throughout the Project, Contractor reserves the right to update its estimates as provided in Section 2.2. Further, Contractor will use best efforts to begin work on the Project within a reasonable time frame not to exceed two (2) weeks from the Start By Date.
8. Currency.  All Fees and other amounts payable under this Agreement shall be paid in Canadian Dollars, unless otherwise specified in the Project Description.

5. Client Obligations

1. Client Cooperation and Content.  In addition to and not in limitation of Client's other obligations hereunder, Client shall:

1. Promptly provide all Client Content and all such other resources as may be requested by Contractor from time to time during the Project. Client will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such Client Content and other resources supplied by Client. For the avoidance of doubt, Client’s failure to provide Client Content within two (2) business days of Contractor's request shall be considered a Client Delay (hereinafter defined).
2. Promptly provide all feedback, instructions, and other communications as may be requested by Contractor from time to time during the Project. For the avoidance of doubt, Client’s failure to provide feedback within two (2) business days of Contractor's request shall be considered a Client Delay (hereinafter defined).
3. Provide all cooperation and assistance Contractor reasonably requests to enable Contractor to exercise its rights or perform its obligations under this Agreement.

2. Client Content License.  Client hereby grants to Contractor a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Client Content as necessary to perform the Services and for Contractor's general development and commercialization of the Project and/or Developed IP. The term of such license will commence upon Client's first delivery of Client Content to Contractor and be perpetual.
3. Client Delay.  Contractor is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by (i) Client’s delay in performing, or failure to perform, any of its obligations under this Agreement, including without limitation Client’s failure to pay Fees and Expenses or provide Client Content and feedback; (ii) Client’s request for suspension, delay, or interruption in accordance with Section 9.2; or (ii) any third party for any reason (collectively, “Client Delays” and each a “Client Delay”). In the event of any such Client Delay, Contractor may, equitably adjust any Project timeline and Fees set forth in the Project Description as Contractor deems reasonably necessary. The foregoing is in addition to, and not in lieu of, all other remedies Contractor may have for any such failure or delay by Client.
4. Responsibility Following Start Date.  In case of any Client Delay in excess of two (2) weeks, Client will be deemed to have suspended performance of the Services under this Agreement and Client will be required to pay the Suspension Fee (as further described in Section 9.2). If Client Delays cause a delay in the Start By Date, Client Agrees to pay an equitable, indisputable, fee based on Contractor's anticipated invoice for the time period during which the Project is delayed.

6. Confidentiality

1. Confidential Information Generally.  During Contractor’s relationship with Client, each of Contractor and Client (each, the “Receiving Party”) may be granted access to non-public, oral or written information relating to the business operations or prospects of the other (the “Disclosing Party”), or that of its parent, subsidiaries or affiliates (“Confidential Information”). Confidential Information includes, without limitation: trade secrets and other confidential and/or proprietary information, present and future business plans, informational memoranda, reports, the identity of the Disclosing Party’s clients, investigations, research, work in progress, marketing and sales information, financial projections, financial information, projections, confidential filings with international, federal or provincial agencies, and all other confidential concepts, methods of doing business, ideas, materials or information.
2. Use of Confidential Information.  During the course of Agreement and two (2) years thereafter (the “Survival Period”), unless otherwise agreed to in writing by the Disclosing Party, the Receiving Party shall not disclose Confidential Information to any person or entity, or use any Confidential Information, except as required in performing work under this Agreement or as may be required by law, provided that for any and all trade secrets of the Disclosing Party, the Survival Period shall last for as long as such Confidential Information qualifies as a trade secret under applicable federal, provincial and/or local law. All Confidential Information shall be and remain the Disclosing Party’s sole property, and shall be returned to the Disclosing Party, or destroyed if incapable of return, upon the Disclosing Party’s written request. The provisions of this Section 6 shall survive the Expiration or any Termination of this Agreement.
3. Exceptions to Confidential Information.  Confidential Information shall not include information that (i) is or becomes publicly disclosed or available; (ii) was previously in the Receiving Party’s possession with no obligation to maintain confidentiality; (iii) was received by the Receiving Party from a third party not under any obligation of confidentiality to the Disclosing Party; or (iv) was developed by employees and/or representatives of the Receiving Party independently of, and without reference to, any Confidential Information.
4. Third Party Information.  Client recognizes that Contractor may have received and, in the future, may receive from third parties associated with Contractor, e.g. Contractor’s customers, suppliers, licensors, licensees, partners or collaborators, their confidential or proprietary information (“Associated Third Party Information”). By way of example, Associated Third Party Information may include the habits or practices of Associated Third Parties, the technology of Associated Third Parties, requirements of Associated Third Parties, and information related to the business conducted between the Contractor and such Associated Third Parties. Client shall during the course of this Agreement and thereafter, hold in the strictest confidence, and not use or disclose to any person, firm or corporation any Associated Third-Party Information.
5. User Data.  User Data consists of information directly or indirectly collected by Contractor from customers, targets and users of its Services. User Data may include personally identifiable information or preferences of such customers, targets and users. Client shall treat User Data as Confidential Information under this Agreement and shall access, use and disclose User Data as authorized by and in accordance with this Agreement.

7. Intellectual Property

1. Generally. Except as otherwise provided in this Agreement, neither party shall have any right, title or interest in or to the Intellectual Property Rights of the other (e.g., Contractor Components, Client Content).
2. Developed IP and Improvements.  Client shall be the sole and exclusive owner of all right, title, and interest in the specific implementation and final form of the Developed IP created exclusively for Client, including all Intellectual Property Rights therein, provided all Fees and Expenses have been fully paid. Contractor retains exclusive ownership of all preliminary drafts, prototypes, and intermediate versions of the Developed IP, as well as the Contractor Components, methodologies, processes, or techniques developed during the course of providing Services.

8. Licenses

1. Contractor Components. The parties agree that Contractor shall retain exclusive ownership of all Contractor Components (including without limitation all copyright rights, patent rights, trademark and trade secret rights) and shall be entitled to use any and all Contractor Components, including any improvements or enhancements made thereto during the Project, in connection with performance of Services for other parties. Provided that Client has paid the Fees provided under this Agreement, Contractor hereby grants Client a limited, nonexclusive license to use any Contractor Component incorporated in the Client's Services solely to the extent as necessary for operation and maintenance of such Developed IP included in the Services. Client agrees not to use or distribute any such Contractor Component on a stand-alone basis in any manner.
2. Third Party Materials.  All Third-Party Materials are the exclusive property of their respective owners. Contractor shall inform Client of all Third-Party Materials that may be required to perform the Services or otherwise integrated into the Developed IP. Under such circumstances Contractor shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third-Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third-Party Materials, Client hereby indemnifies, saves and holds harmless Contractor from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Developed IP.
3. Contractor Works.  Contractor retains all rights in and to all Contractor Drafts. Client shall return all Contractor Drafts to Contractor within thirty (30) days of completion of the Services and all rights in and to any Contractor Drafts shall remain the exclusive property of Contractor; provided that, unless otherwise permitted under this Agreement, Contractor shall not use any Contractor Drafts that contain any taglines, logos, trademarks or names owned by Client.
4. License to use Source Files.  To the extent that Source Files are incorporated in the Deliverables, Contractor hereby grants to Client a non-exclusive, non-transferable license to use the Source Files for the Project, subject to payment in full of all Fees and Expenses. Source Files include design files, source code, development files, custom fonts, databases, configuration files, build scripts, and other raw materials used to create the Developed IP. Client may make routine updates and modifications necessary for the ongoing maintenance and operation of the Developed IP. However, any substantial modifications that materially alter the core functionality, design, or architecture shall: (a) void any warranties provided under this Agreement for the modified portions; and (b) release Contractor from any support obligations for the modified portions. Attribution requirements under Section 13.13 shall remain in effect regardless of modifications. For substantially modified work, attribution may indicate "Originally by [Contractor name]" or similar language as appropriate. Without Contractor's prior written consent, Client shall not: (a) redistribute or resell the Source Files; (b) use the Source Files in derivative works outside the scope of the Project; or (c) remove or modify any proprietary notices or attributions.

9. Term and Termination

1. Term.  This Agreement shall commence upon the Effective Date and shall continue in full force and effect thereafter until all Services required under the Project Description have been completed (i.e. the Project is Done) (“Expiration”) or until terminated as provided below (“Termination”).
2. Suspension of Services. Client may request that Contractor suspend, delay or interrupt all or any part of the Services, upon two (2) weeks’ written notice to Contractor. In the event of any such suspension, delay, or interruption, Contractor shall be compensated (i) for all Services performed and reimbursable expenses incurred prior to receipt of notice of suspension, delay, or interruption and, (ii) for four (4) weeks of loss earnings resulting from the suspension, delay, or interruption, calculated based on the last amounts invoiced or due to be invoiced for Services performed, regardless of how long the suspension lasts (the “Suspension Fee”). Services will be suspended until Client provides written notice to Contractor of its desire to lift the suspension. Upon resumption of the Services, the Project timeline and Fees for the remainder of the Project shall be equitably adjusted. If the Services are suspended for more than thirty (30) days, Contractor reserves the right to immediately terminate the Agreement without prior notice to Client. Nothing herein obligates Contractor to hold Contractor personnel for suspensions, delays, or interruptions in excess of two (2) weeks.
3. Termination.  Either party may terminate this Agreement upon thirty (30) days’ written notice.
4. Payment on Termination. Immediately upon Termination, Client shall pay Contractor for all Services provided or performed, expenses incurred, and Developed IP delivered prior to the date of Termination. In addition, (i) if Contractor terminates the Agreement pursuant to a thirty (30) day suspension as provided in Section 9.2, or (ii) if the Agreement is terminated by Contractor due to Client’s breach of this Agreement (including without limitation in the event that Client fails to pay Fees hereunder or causes a Client Delay), Contractor will be compensated a twenty percent (20%) anticipated profits on account of Services unperformed under the then current Project Description. Any other remedies available to Contractor under this Agreement or at law shall survive termination.
5. Developed IP following Termination.  Unless otherwise provided in the Project Description, if, prior to completion of the Project, Client terminates this Agreement, Contractor shall have no obligation to deliver to Client any Developed IP prepared by Contractor in connection with such Project that had not been yet delivered to Client prior to Termination. Provided that Client has paid all applicable fees related to the delivered Developed IP at the time of Termination, ownership of the Developed IP shall survive Termination in accordance with the terms of this Agreement.
6. Survival.  The provisions of this Section 9 shall survive the Expiration or any Termination of this Agreement.

10. Representations and Warranties; Liability

1. Contractor Limited Representations and Warranties.  Contractor represents and warrants to Client that it shall perform the Services in a professional manner; and, in conformance with that level of care and skill ordinarily exercised in similar circumstances by professional providers of the same or similar services. THE WARRANTIES PROVIDED TO CLIENT SHALL BE VOID IN THE EVENT CLIENT OR ANY OTHER THIRD PARTY MODIFIES ALL OR ANY PART OF THE SERVICES, INCLUDING DEVELOPED IP OR ANY ELEMENT THEREOF, USES THE SERVICES IN ANY MANNER OTHER THAN AS DESCRIBED IN THE INSTRUCTIONS PROVIDED BY CONTRACTOR, FOR THE COMMERCIAL  OR OTHER PURPOSE FOR WHICH THEY WERE PROVIDED FOR, OR IS OTHERWISE IN BREACH OF ANY OBLIGATION HEREUNDER.
2. Client Limited Representations and Warranties.  (a) all Client Content, information, and materials provided by Client under this Agreement do not and will not (i) use or include any confidential or proprietary information or trade secrets of any third party, unless Client has received a written license from the owner thereof to use as contemplated hereunder; and (ii) violate the rights of any third party in any jurisdiction, including but not limited to copyright, trade secret, trademarks, publicity, privacy, patents, or other rights; and (b) Client (i) has completed and received all authorizations, approvals and appropriations necessary for Client to perform its obligations under this Agreement; (ii) shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; and (iii) shall comply with all laws and regulations as they relate to the Services and Developed IP, including without limitation laws relating to import, export or re-export of the Software or technical data related thereto.
3. Mutual Representation and Warranties.  Each party represents and warrants to the other party that: (i) it has the right to enter into this Agreement and perform its obligations hereunder; (ii) it is organized under the laws of its jurisdiction in a corporate or equivalent form; (iii) to the best of its knowledge there are no claims, actions or proceedings against it (including without limitation bankruptcy, dissolution, liquidation, or any assignments for the benefit of creditors) that would impair its ability to honor all legal obligations hereunder; (iv) the person executing this Agreement on its behalf has been authorized to do so; and (v) the Agreement constitutes its valid, legal and binding obligations enforceable in accordance with its terms.
4. Disclaimer of Warranties; Third Party Materials.  CONTRACTOR DOES NOT WARRANT THE THIRD PARTY MATERIALS. ALL THIRD PARTY MATERIALS PROVIDED UNDER THIS AGREEMENT ARE LICENSED DIRECTLY TO CLIENT BY THE MANUFACTURER OF SUCH MATERIALS, AND CLIENT WILL RECEIVE WARRANTIES, IF ANY, FOR THIRD PARTY MATERIALS AS PROVIDED BY THE AUTHORS OR MANUFACTURERS OF SUCH MATERIALS. As such, Client agrees that Contractor shall not be liable for any defects, flaws, programming errors, inefficiencies or malfunctions in any such Third Party Materials, or for any nonperformance of the Third Party Materials. Client further agrees that any claim based on, related to or arising out of the use of any such Third Party Materials shall be governed exclusively by the terms of Client's license agreement with such third-party.
5. Disclaimer of Warranties; Developed IP.  EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE DEVELOPED IP, AND ANY CONTRACTOR COMPONENTS (INCLUDING THE RECORDS AND OTHER DATA CONTAINED THEREIN) ARE PROVIDED ON AN “AS-IS CONDITION” BASIS AND CONTRACTOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE FOREGOING, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES AS TO THEIR ACCURACY, QUALITY OR USEFULNESS. CONTRACTOR SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE DEVELOPED IP, AND ANY CONTRACTOR COMPONENTS PROVIDED HEREUNDER WILL MEET CLIENT’S REQUIREMENTS OR PERFORM CONTINUOUSLY WITHOUT ERROR, WILL BE COMPLIANT WITH ANY OF CLIENT’S LEGAL, REGULATORY OR JUDICIAL REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY CLIENT, OR THAT THE SERVICE OR THE OPERATION OF THE DEVELOPED IP AND ANY CONTRACTOR COMPONENTS WILL BE UNINTERRUPTED OR ERROR FREE. CONTRACTOR DISCLAIMS AND CLIENT WAIVES ANY AND ALL WARRANTIES WHICH MIGHT HAVE ARISEN OR MIGHT LATER ARISE FROM COURSE OF PERFORMANCE OR DEALING OR USAGE OF THE TRADE AND RELEASES CONTRACTOR FROM ALL LIABILITY FOR LOSS OR DAMAGE SUSTAINED RELATING THERETO.
6. Contractor Release.  THE WARRANTIES, OBLIGATIONS, AND LIABILITIES OF CONTRACTOR AND THE RIGHTS, CLAIMS, AND REMEDIES OF CLIENT SPECIFICALLY SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. CLIENT HEREBY RELEASES CONTRACTOR FROM ALL OTHER WARRANTIES, OBLIGATIONS, AND LIABILITIES, THAN OTHERWISE MENTIONED IN THIS AGREEMENT AND HEREBY WAIVES ALL OTHER RIGHTS, CLAIMS, AND REMEDIES AGAINST CONTRACTOR, ITS OWNERS, DIRECTORS, OFFICERS, INDEPENDENT CONTRACTORS, OR EMPLOYEES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY AND ALL DEVELOPED IP, EQUIPMENT, SOFTWARE, OR OTHER TANGIBLE OR INTANGIBLE ITEMS OR SERVICES PROVIDED UNDER THIS AGREEMENT.

11. Default and Remedies

1. Remedy.  Contractor's sole liability and Client's sole and exclusive remedies under the limited warranty provided above are as follows: if notified by Client in writing of a problem, Contractor, at its option, will make appropriate revisions to the Developed IP at Client’s charge. Client's sole remedy with respect to the Third Party Materials and third party products shall be to the manufacturer of such materials or products and as provided in the license/warranty agreement by the manufacturer thereof.

2. Force Majeure.  Contractor shall not be liable or responsible to Client, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Contractor's reasonable control, whether or not foreseeable, including, without limitation, the following force majeure events (“Force Majeure Events”): (a) acts of God, (b) flood, fire, earthquake or explosion, (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, (d) government order or law, (e) actions, embargoes or blockades in effect on or after the date of this Agreement, (f) action by any governmental authority, (g) national or regional emergency, (h) strikes, labor stoppages or slowdowns or other industrial disturbances, (i) shortage of adequate power, delays in transportation or transportation facilities, (j) pandemic, epidemic, or public health emergency, and (k) non-performance by any third party (including vendors or suppliers). Contractor shall give notice within thirty (30) days of the Force Majeure Event to Client, stating the period of time the occurrence is expected to continue. Contractor shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. Contractor shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
3. Consequential Damages Waiver and Limitation of Liability.  CONTRACTOR SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS OR LOSS OF DATA) OR INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, WHETHER THE BASIS OF LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE OR ANY OTHER LEGAL THEORY, NOTWITHSTANDING ANYTHING ELSE HEREIN. CONTRACTORS'S TOTAL LIABILITY TO CLIENT UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE PAYMENTS ACTUALLY RECEIVED FROM CLIENT UNDER THE APPLICABLE ATTACHMENTS DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE A CLAIM FOR LIABILITY ARISES HEREUNDER.

12. Mutual Indemnification

1. Indemnification. Each party shall indemnify, defend and hold the other harmless from and against any and all liabilities, claims, losses, costs, damages and expenses (including reasonable attorneys’ fees and court costs) incurred in connection with any third party claims that relate to or arise out of (i) such party’s performance, or failure to perform, its obligations under this Agreement or (ii) any breach of the obligations of a party hereunder pursuant to this Agreement (e.g., any Third-Party Claim that the Client Content, or any use of the Client Content in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights).
2. Limitations. The foregoing obligations of Contractor under Section 12.1 shall not apply with respect to the Developed IP portions or components thereof (i) if not supplied by Contractor; (ii) which are modified by Client, or a party other than Contractor working for Client unless so authorized by Contractor; or (iii) combined with other software or hardware not provided by Contractor.

13. General

1. Complete Agreement; Amendments.  This Agreement, including the Attachments and any modifications by Contractor to the Project Description as incorporated herein by reference, is the complete and exclusive statement of the agreement between the parties with respect to the subject matter contained herein and supersedes and merges all prior representations, proposals, understandings and all other agreements, oral or written, express or implied, between the parties relating to the matters contained herein. In the event of any conflict between this Agreement and any Attachments, this Agreement shall control. This Agreement and the Attachments, with the exception of the Project Description which may be amended in accordance with Section 2.2., may be modified only by an amendment executed in writing and signed by a duly authorized representative for each party.
2. No Exclusivity.  The Services are provided on a non-exclusive basis, and the parties agree that Contractor can market and provide its products and services (including without limitation services of the same or similar nature to the Services provided under this Agreement) and otherwise conduct its business with and to any third party, whether or not its business or the business of any such third party is now or in the future directly or indirectly competitive with Client’s business. For the avoidance of doubt, Contractor personnel performing Services for Client under this Agreement may perform similar services for others during or after the term of this Agreement.
3. Independent Contractor.  Contractor is an independent contractor, not an employee of Client or any company affiliated with Client. Contractor shall provide the Services under the general direction of Client, but Contractor shall determine, in Contractor's sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
4. Design Agents.  To preserve continuity of the Services, Contractor reserves the right to substitute or supplement members of Contractor's team as necessary in order to complete the Project in a timely manner and/or engage third party providers or other service providers as independent contractors in connection with the Services (“Design Agents”). Contractor shall not be liable for any actions, omissions, or delays of such Design Agents, and that such Design Agents shall not be considered agents of Contractor for any purpose.
5. Non-Solicitation.  During the term of this Agreement, and for a period of six (6) months after Expiration or Termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Contractor employee or Design Agent of Contractor, whether or not said person has been assigned to perform tasks under this Agreement. For the avoidance of doubt, general public advertisements for employment and responses thereto, shall not be deemed a violation of this Section. Client agrees that any breach of this Section 13.5 would damage Contractor in the amount difficult to ascertain with certainty, and that in the event that Client breaches this provision resulting in Contractor losing the services of an employee or independent contractor for any period of time, the breaching party shall pay to the other party an amount equal to the annual rate of compensation (with the nonbreaching party) of the applicable employee or independent contract.
6. Refunds.  No Developed IP or modifications thereof ordered by the Client shall be returned to Contractor for refund. Client hereby acknowledges that the Fees invoiced for Contractor's Services represent the rate(s) prescribed in the Project Description for payment for Contractor's labor, and not the Developed IP.
7. Choice of Law.  This Agreement shall be governed by and construed in accordance with the Laws of the Province of Alberta and the federal Laws of Canada applicable in that Province, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Alberta or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the Province of Alberta. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
8. Venue.  The parties hereby consent to the exclusive jurisdiction and venue in the shall be instituted in the courts of the Province of Alberta or the Federal Court of Canada having subject matter jurisdiction. The parties hereby agree and submit to the personal jurisdiction and venue thereof.
9. Invoice Disputes.  Contractor shall be entitled to recover its costs of enforcing Client's payment obligations hereunder, including without limitation reasonable attorney's fees incurred at all levels and proceedings including settlement and appeal, in addition to other relief to which Contractor may be entitled.
10. Timing.  Dates or times by which Contractor is required to perform under this Agreement will be postponed automatically to the extent that Contractor is prevented from meeting them by causes beyond its reasonable control, including without limitation by Client Delays.
11. Severability; Waiver.  If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision of this Agreement.
12. Promotions.  Client's continued success is important to Contractor, which is committed to fostering a lasting relationship with Client. Thus, Contractor wishes Client to be fully referenceable. Contractor retains the right to reproduce, publish and display the Project and/or Developed IP in Contractor’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Project and/or Developed IP in connection with such uses. Subject to any confidentiality obligations provided herein, Client grants Contractor and its affiliates a limited, non-revocable right and license to use and publicly display the Project and/or Developed IP, which may include Client’s trademarks, names, logos or domain name on Contractor’s blog, website, social media channels, or in other marketing or advertising materials, solely in connection with the promotion and marketing of Contractor's services.
13. Attribution.  Client agrees to provide credit attribution for the Developed IP in a manner suitable for the medium and use case, such as: (i) an attribution link in the website footer, using the phrase '[Design/Development] by [Contractor Name]' or 'Built by Field'; (ii) a credits page or colophon accessible from the main navigation or footer, where Contractor shall be prominently acknowledged as a contributor; or (iii) inclusion of project credits within an about or information page. The format and location of the attribution can be mutually agreed upon, taking into consideration the overall design and context of the deliverable. Attribution requirements shall survive the Expiration or Termination of this Agreement.
14. Backup and Security.  Contractor shall maintain reasonable backup and security procedures for the protection of Client Content and Developed IP during development. However, Client acknowledges that it is solely responsible for maintaining backup copies of any Client Content provided to Contractor and any Developed IP delivered to Client.
15. Notices.  All notices and requests in connection with this Agreement will be given or made upon the respective parties in writing. Notice may be given by mail, postage prepaid, certified or registered with return receipt requested, email or personal delivery. If mailed, emailed or delivered, notice will be deemed to be given on the business day following the day it is received by the recipient. Notices shall be delivered to the appropriate party’s address or email address below (or such other address and email address as a party may designate by notice to the other parties):

If to the Client:

Calgary Arts Development Authority Ltd. (CADA)
Suite #1410
150 9 Avenue SW
Calgary, Alberta, T2P 3H9
Email: CLIENT_CONTACT_EMAIL

If to Contractor:

Field Creative Inc.
Molson's Bank #300
116 8 Avenue SW
Calgary, Alberta, T2P 1B3
Email: jesse@builtbyfield.com

16. Assignment.  Contractor may assign this Agreement and any rights or obligations hereunder, whether by operation of contract, law or otherwise, including to any Contractor affiliate, partner, parent or subsidiary. Client may not assign this Agreement or any rights or obligations hereunder whether by operation of contract, law or otherwise except with written consent of Contractor, which shall not be unreasonably withheld.
17. Counterparts and PDFs.  This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same document. Delivery of an executed signature page to this Agreement by email of a PDF or other electronic means shall be effective to the same extent as if such party had delivered a manually executed counterpart.
18. Survival. The provisions of Sections 6, 7, 8 (to the extent relating to ownership rights and confidentiality provisions), 10, 11 (to the extent relating to disclaimers), 12, and 13 shall survive Termination or Expiration of this Agreement for any reason.
19. Headings and Captions.  Headings and captions contained in this Agreement are for convenience of reference only and shall not be considered in the interpretation or construction thereof.

[SIGNATURE PAGE TO FOLLOW]

IN WITNESS WHEREOF, each party’s duly authorized representative has executed this Agreement as of the latest date below.