Service terms and conditions

This Design and Development Agreement dated (this "Agreement"), is entered into between ARQ DESIGN STUDIO CORP, a corporation incorporated under the laws of Canada ("Contractor") and You, the information on your business entered at checkout,] ("Client", and together with Contractor, the "Parties", and each, a "Party").

A person who is not a party to this Agreement has no right to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act. This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement. 

WHEREAS, Developer is engaged in the business of providing design development and related services and work products;

WHEREAS, Customer desires to retain Developer to provide the design development and related services described herein and from time to time in separately executed statements of work; and

WHEREAS, Developer is willing to provide such services to Customer, on the terms and conditions set forth in this Agreement;

NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

ARTICLE 1

TERMS OF THE AGREEMENT

Section 1.01 Term. The terms of this agreement extend from The date reserved online for your service, for a packaged service engagement, ending on the date in your scheduled service chosen, + or - 5 business days buffer, or when either party advises in writing intent to terminate this agreement with a 15-day prior written notice. The parties acknowledge that this is a binding legal agreement, and its terms cannot be modified except by mutual agreement of the parties.

The Service is scheduled to begin upon deposit being provided and official Kickoff is The day service starts, assuming a deposit received at the time of booking and start date of the service date reserved The service provider will work diligently to ensure everything is set up and running prior to Kickoff. 

Section 2.02 Capacity/Independent Contractor. In providing the Services under this Agreement it is expressly agreed that the Contractor is acting as an independent contractor and not as an employee. The Client and the Contractor acknowledge that this Agreement does not create a partnership or joint venture between them, and is exclusively a contract for service. 

Client cannot demand full time performance from the Contractor at any point of service.

Section 2.03 Office Hours and Availability.

ARTICLE 2

SERVICES AND PRODUCTS

Section 2.01 Package. Client has chosen the Shopify Accelerator package seen in APPENDIX A.

Section 2.02 Limited Term. Company also agrees to provide Client with the following services on a one-time basis as detailed if applicable in the attached Scope of Work or updated from time to time by the parties in writing with email or ClickUp comments being sufficient.

ARTICLE 3

SERVICE COST, FEES & PAYMENT

The "Total Cost" for all Service is due in full by the handoff  for each package of service.

Client will receive approximately two (2) emails per payment due, automatically sent by our system, to remind of upcoming payment, payment due date.

Section 3.01 Payment Timeline. Payment must be made on time and without any deduction, set-off or counterclaim. We also reserve the right to refuse completion or delivery (handover) of The Project until any outstanding balances are paid in full.

Agency terms are Net thirty (30) days from receipt of invoice. Interest at 1.5% will be charged on accounts past due thirty (30) days.

Client shall pay the Total Cost to contract as follows:

Deposit of 34% to reserve their booking spot

33% on day of Kickoff

33% on project estimated end date

Project must be paid in full before handoff.

Section 3.02 Forms of Payment.

1. Not acceptable forms of payment for Services: Cheque, Cash, Money order, PayPal, Venmo, Crypto currency, or other digital payments and/or providers are.
2. Acceptable forms of payment include: Credit Card, Wire Transfer, Wise Transfer, Veem, Online Bank Automatic Deposit for Client's outside of Canada, or Interact eTransfer for Clients within Canada.

Section 3.03 Late Fees. Client agrees to pay interest at the relevant reference rate provided for under applicable late payment and commercial debts law, which interest is payable both after and before any judgment of the court and continues to accrue. 

Contractor will follow up with Client with a minimum of 2 additional payment overdue emails if payment is late within 14 days of non-payment.

​If Contractor does not receive payment from Client within 30 calendar days of any payment date, then Client will be charged a late fee of 1.5% of the outstanding amount per each day that Contractor does not receive payment.

For example: 

1. Client owes Contractor $1000 due on April 1 and fails to pay by April 30th.
2. On May 1st, Client owes Contractor $1015. 
3. On May 2nd, Client owes Contractor $1030.23.
4. On May 3rd, Client owes Contractor $1045.68, and so on.

In the event that an account continues to be outstanding after 45 days, we will refer the matter to our debt collection agents, which will incur costs of. Any costs incurred to collect the debt will be added to the outstanding debt, at the prevailing rate. You agree that you will be legally liable to pay us that surcharge and that payment of the same can be enforced against you in court.

Section 3.04 Currency. ​Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in CAD.

Section 3.05 Refunds and Chargebacks. ​Delays to the project on behalf of the client's failure to provide content, knowledge transfer for copywriting, photography, business details to launch, provide their own training are not acceptable reasons to request a refund for the project or issue a chargeback to the Client's credit card company. Contractor holds all rights to refuse a refund for work completed upon a Client's request for refund. Contractor will not be held responsible to issue a chargeback to Client through their credit card company after work has been completed and delivered to client.

Section 3.06 No Refunds. Client understands that due to the nature of the services provided, no refunds can be made on any payments. The Client is reserving a spot in Contractor's limited schedule and Contractor declines to other paid work in order to create space for the Client. Because of that, Contractor is not obligated to return payments if the Client changes their mind or cancels the project. Should Client have concerns about the fees assessed, Client agrees to communicate with Contractor directly in order to address any issues. Client agrees to not initiate payment disputes through Client’s banking institution before following with a dispute resolution.

Section 3.07 Pay in Full. Client agrees to pay for services in full monthly. If cost is not paid in full we withhold the right to, at our discretion, downgrade your retainer package of Services or put your account into Suspension. If Client cannot provide final payment, Contractor reserves the right to refuse release of files to client, refuses release of copyright assignment, or to launch the website ahead of the final payment, fees, and interest being captured.

ARTICLE 4

ADDITIONAL COSTS

Section 4.01 Costs not Covered.

1. Variable Costs:
1. Web Fonts licence (€80-€500) for web-font licensing through foundries;
2. Cost of Klaviyo - Klaviyo Pricing is by list size and features

Section 4.02 Out of Scope Hourly Fees. Contractor's out of scope hourly rate is $250 CAD per each hour spent on Client’s Services over the allotted amount of time or deliverables purchased.

Section 4.04 Expenses. Contractor will make a reasonable attempt to get pre-approval prior to any additional expenses. Any approved expenses Contractor incurs by the project while providing Client with Services will be invoiced to Client in a timely manner. Such expenses include stock photography, stock audio, stock footage, graphics, software subscription fees or any other reasonable tool or product Contractor feels necessary in order to render Services. Client is responsible for paying for and delivering any third party products Client wishes Contractor to utilize by Milestone signoff date.

At Contractor's discretion, Contractor will make reasonable efforts to integrate Client’s suggestions.

Section 4.05 Mandatory Automatic Payments. Client agrees that payments will be made on specified due dates above. Client agrees to a mandatory opt-in in the Proposal or Payment Gateway checkout of Auto-Pay/Auto-Draft via Online Bank Transfer or Credit Card payments. Contractor agrees to pay up to 3% in transaction fees per payment on Client's behalf not in addition to the Cost of Services. Client agrees to pay for overdraft or "bounce" charges because of Client late payment on their account. If client wishes to reschedule payment dates or amounts, the Contractor may consider but will not be required to accommodate Client's requests to Contractor can maintain cash flow to pay for Subcontractor(s) agreed amounts who are scheduled to Service Client's project.

Section 4.06 Account NOT IN GOOD STANDING, Administration Restart Fee. If Client misses a payment deadline, or does not comply with processing late fees, or bank charges from payment non-compliance, Contractor reserves the right to, at their discretion, put Project into Suspension or Immediately cancel Services without notice. 

All deliverables will not be released or delivered to Client, any of their heirs. Client's account will not be released from delinquency until Invoice and all late fees, interest, legal fees, and charges have been processed by Client. 

ARTICLE 5

PROECT SUSPENSION

Section 5.01 Definition. Contractor will put a full stop on all work activities related to Client’s account. No Projects, tasks, or Milestones will be delivered. Clients' access to Contractor’s systems will be removed. Clients wishing to reinstate a suspended project will be subject to a reinstatement fee and must contact the Contractor with due notice to reinstate their Services.

Section 5.02 Reinstatement Fee. Reinstating a suspended project will incur a fee equal to 20% of the monthly project value to resume the Services plus a $300 administration to restart Services. Contractor may not be able to reinstate or resume services until the next available slot.

Section 5.03 Null and Void on Projects and Milestones. All deadlines and launch dates are deemed null and void upon suspension. Designer in its sole discretion shall communicate availability to reinstate Client projects on a case by case basis.

ARTICLE 6

LEGAL ACTION

Contractor may pursue Collection Agency or Legal Action Services to collect payment from Client's delinquent account. Client's account will be immediately placed into delinquency. If legal assistance is required to collect debts owed we will be entitled to claim reasonable legal fees, court costs and interest at the maximum rate permitted by law.

Contractor is not responsible for any loss or expense (legal or otherwise) to defend Company in any actual or potential suit, claim or action arising in any way from our working relationship. This includes, but is not limited to, assertions made against Client and/or any of products and services arising from the publication of materials that Contractor prepares and Client approves before publication.

ARTICLE 7

CLIENT RESPONSIBILITIES

Section 7.01 Communication and Meeting Guidelines.

1. Client Response Time. Client shall respond to all Designer communications, especially feedback deadlines, within two (2) business days, no longer than five (5) business days. If Client fails to respond within that time, Company may delay Client’s Services or alter their estimated timeline of delivery. 

Contractor may choose to continue services and move to the next milestone without Client's input instead of delaying or suspending the project, without Client's input if feedback is not received within 5 business days.

1. Acceptable Communication Medium. All inquiries should be directed to your Project Manager via Email, ClickUp (If invited to a project board), or Slack (if invited to a channel). Client should also direct all inquiries regarding web maintenance via ClickUp. 

Section 7.02 Client Will Provide. 

1. See your Scope of Work for more details at Kickoff

1. Collaborator full store access to any existing Shopify stores and Kkaviyo Account using Contractor's Partner account(s)
2. Domain and Font License Renewal: It is the responsibility of the Client to purchase their own domain name and desktop and web font license. Contractor can provide guidance on where to purchase your domain and assistance pointing it to your website. However, Contractor will not purchase the domain on your behalf.

ARTICLE 8

CONTRACTOR RESPONSIBILITIES

Section 8.01 Contractor Will Provide. 

Please refer to Appendix A for the scope of work and definition of Services.

Section 8.02 Contractor Will Not Provide. 

1. Copy and content updates after the copywriting "last call" date;
2. Additional refinements outside of scope with cost approval from Client;
3. Consulting or advice on Services provided by third-party Contractors for Materials not directly provided by Contractor in the service schedule;
4. Additional meetings outside of Client Communication and Meeting Guidelines unless Client gives approval for hourly billing;
5. Proofing or consulting for errors in copy or photography provided by Client;
6. Proofing, reviews, consulting, tech assistance, setup, editing or any administrative tasks for deliverables such as (but not limited to) copy, design, strategy, or content provided by third party providers not subcontracted by the Contractor.
7. Illustrations or custom artwork;
8. Animation development without provided prototype or documented spec;

Section 8.03 Loss of Design or Code. In the rare event that any or all design or code are lost, such as damage to the computer or equipment, stolen computer or equipment or damaged SD or other memory cards or drives, Contractor shall either refund Client the corresponding percentage of lost design or code or attempt to re-do the lost code. For example, if 30% of the original design or code taken are lost, Contractor shall refund 30% of the Total Cost or re-do/replace 30% of the lost design or code.

Section 8.04 Files and Delivered Assets. 

1. Developer or comment-able preview links will be provided only, no raw files, in a Figma link. If Client requests raw files to be delivered, a $500 CAD charge will be required for file prep, documentation and training;
2. Documentation will be delivered in Google Docs or via ClickUp public links and Videos saved to Loom, in addition to any PDF or like documents saved to Google Drive;
3. All code will be synced in a private repo to Contractors secure GitHub Account. If Client requests raw files to be backed up to a different system, a $500 CAD charge will be required for prep, documentation and training;
4. Client is responsible for downloading the source files, documentation and the Loom videos 12 weeks after final project delivery. After 12 weeks, Arq may remove the files from their server at that point. We cannot guarantee based on App restrictions that all videos will be eligible for download from Loom;
5. Contractor will deliver the site either: 
1. A Development site as a preview link (all preview links expire after 2 days);
2. An unpublished theme with instructions on how to preview unpublished pages, products, and the like.
6. Upon final payment, Contractor will transfer ownership of the design, code, and strategy to the Client/Merchant. Client/Merchant will always own their site and Shopify store regardless of payment status.

1. File Storage. Digital copies of any designs produced in the course of fulfilling this Agreement will be stored until delivery of final designs and/or products. After March 6th 2023, Client releases Contractor from any and all liability for lost, buggy, or damaged files or designs and development after this date.
2. File Security. If Client requests all documents to be made private and secure, Client agrees to create an account with the different systems Contractor has provided access to, and will hold Contractor harmless from any public links being circulated to outside vendors. Client agrees to not circulate Contractors Intellectual Property from Contractors systems that Client may have access to.

Section 8.05 Accessibility, Performance and WCAG Compliance. Client understands that Client has hired Contractor to execute on a email experience, with a basic custom development package. The Contractor will not be held liable for any claims, causes of action, damages or other losses arising out of, or related to, the Services provided in this Agreement from WCAG (Web Content Accessibility Guidelines) Accessibility lawsuits under any governing body. The Contractor agrees to provide a design that aligns to the color contrast level AA of the WCAG 2.0 guidelines as of August 3 2022. 

Client understands that the WCAG AA requirements and browser implementation of features changes over time and releases Contractor from continuous improvement requests after the date of the implementation is scheduled to be completed.

ARTICLE 9

SCHEDULE OF SERVICES

Contractor shall deliver Services in a reasonable amount of time. Client must substantively respond to any Contractor communications within 1-2 business days before the pre-Service consultation, and within 2 hours on the days of Services.

All necessary materials and content needed will be provided by the client prior to kickoff date.

Contractor will incrementally provide materials, such as access to ClickUp and Google Docs, as soon as the deposit is received for pre-work to be started prior to kickoff.

ARTICLE 10

REFINEMENTS

Section 10.01 Definition. Contractor has chosen to use the word "refinement" instead of "revisions" to describe this part of its process and it's important for the Client to know why. The word "revision" pits both parties against one another from the very beginning, implying that what's presented will have something wrong with it. And while Contractor doesn't claim to be perfect, Contractor doesn't want the Client to have these negative expectations of us either, which is exactly why Contractor spends so much time on discovery and strategy in the very beginning. This allows the Contractor to mindfully develop, create, and present a solution that has the Client's brand's best interest at heart. Because of this, the word "revision" isn't appropriate for what happens next.

Section 10.02 Refinement Scope. Contractor and Client will work collaboratively to analyze what's working and tap into how we can make the milestone solution even BETTER. Sometimes, this takes shape in the form of small tweaks, while other times, new insight and discussion will transform the original solution or concept into something stronger. Either way, it's all a part of the process. 

Final website refinements of the theme in Shopify happen in a two week refinement cycle where unlimited refinements, to the approved and signed-off scope, final delivered mockups and technical requirements, will be completed on an as-needed basis determined by the Contractor.

It is a normal process and expected for some non-purchase-path blocking design related issues to be resolved post-launch for custom projects of this nature. We average about 10 non-critical issues that need to be incrementally resolved post launch to meet our deadlines for custom website implementations for projects within a retainer.

Section 10.03 Refinement Limits. Clients are permitted a maximum of Two (2) refinements of the agreed upon services. Clients will be subjected to Contractor’s hourly rate of $250/hour for any additional services or modifications requested beyond the three (3) refinements. Contractor reserves the right to deny additional hourly services based on its sole discretion. 

Section 10.04 Additional Refinements Outside of Scope. Contractor makes reasonable efforts to revise and edit Client’s designs in a tasteful and professional manner before delivery of Client’s final designs. If Client requests further retouching or edits after final refinements and delivery of Client’s final designs are approved, requests revisions to the concept, then Client agrees to pay Contractor for any additional changes Contractor makes at Contractor's hourly rate of $250 CAD/Hour or opt-into a top-up rate as described in APPENDIX A for a reduced hourly rate bundle.

ARTICLE 11

PROOFING AND APPROVALS POLICY

Client shall approve proofs within two (2) business days. Any changes to key deliverables after proof is approved shall be subject to rescheduling and additional per hour rate. 

If Client fails to respond to Contractor within this 2 business day period, up to the 5 business day grace time period for feedback or any other Contractor feedback request(s), it is within the Contrator's discretion to:

1. Deliver the Services as is, and/or
2. Delay Services and issue a new timeline according to the Reschedule Policy, or
3. Continue to the next milestone without Client's input or signoff and Client will not have the right to request refinements on.

Section 11.01 Formal Milestone Sign off Required. 

CLIENT SHOULD BE MADE AWARE THAT FOR CONTRACTOR TO COMPLY WITH THEIR CORPORATION INSURANCE AND LIABILITIES, AND MAKE IT CLEAR TO CLIENT WHEN THEY ARE EXPECTED TO HAVE GIVEN FINAL APPROVAL FOR A MILESTONE COMPLETION, CONTRACTOR WILL HAVE THE CLIENT SIGN A FORMAL SUB-AGREEMENT AT THE END OF EACH MAJOR MILESTONE.

Client will be made aware of their final window for feedback with Contractor noting inside ClickUp or via email the "Last Call for refinements" at the end of each milestone. 

We use an iterative approach for both visual design and technical development phases, providing you with the opportunity for feedback at various stages throughout the Work. Following each design or development iteration, changes may be requested provided that such changes do not substantially alter the specifications described in our original brief or contradict previous requested changes. 

Section 11.02 Feedback Milestones. It is important we stick to set milestones and task deadlines to ensure the smooth running of Your Project. These must be abode by both the Client and Contractor. You agree to meet all deadlines provided to you. If for any reason you believe you cannot meet the provided deadlines, Contractor will need to be notified within 48 hours of receiving your "Schedule of Tasks". Work is scheduled up to two weeks in advance; if you fail to meet feedback or sign-off deadlines, this may have a considerable impact on the project timeline. The Project handover date/completion of Work will remain and the payment in full must be sent to Contractor. 

Contractor must have in hand formal signoff for each of the following milestones that apply:

1. Final approved sign off, with no changes, to all copywriting before design phase begins;
2. Final approved sign off, with no changes, of all visual design mockups before development implementation begins;
3. Feedback no longer than 72 hours, or 3 business days, whichever is longer, on specified client milestones;
4. Testing and refinement feedback during the testing period via ClickUp QA ticket submission policy attached to this agreement in Exhibit A.

Contractor will send at minimum two (2) emails telling the client we will move onto the next milestone without signoff if we choose this approach if payments continue and feedback is not received.

Any changes to the site's appearance that were not agreed before starting the project, or represented at the time of signoff, will be handled as a separate project and will be priced accordingly with its own timeline.

Any Work that is outstanding due to delays will be tabled up and rescheduled to the next available slot or Month and will not be considered impacting the Amount of Projects delivered within the month of the Service.

Section 11.03 Final Sign Off & Handover. It is the responsibility of the Client to check the content and functionality of the website before launch. On completion of The Project, we will ask you to provide us with email confirmation of your sign-off on the website and your confirmation that the website is ready to go live. After this email confirmation is provided, any future charges will be charged at our standard hourly rate of $250 CAD. 

Final approved sign off that content and copy is to spec, is spell checked and finalized, the functionality works in their browser(s), product pricing and structure is correct, and critical infrastructure is working as needed prior to launch.

On the date of the website launch, we may set-up your domain name to direct traffic to your new website. In order to do this, we will need to liaise with your domain registrar to configure your Domain Name Server. These changes may take 24 hours to propagate across the Internet.

Section 11.04 "Completion" versus "Launch". Completion strictly refers to handover of the website when the scope of work agreed within the proposal has been done to specification, and not to the time of site going public (aka Launch). Final payment should be paid immediately after handover, and not the date it goes live to public. Included in your package is 10 business days hands on support/aftercare.

Section 11.05 Withholding Approvals. Should client refuse to sign our formal milestone signoff sub-agreement and release for 5 business days after the first request, because of refinement requests made after the "Last Call" milestone delivery from Contractor, outlined from their "Last Call" date, Contractor holds to continue the project without Client’s input, without changes from delivery, to move towards the target project completion date. If 7 business days have passed, and client has refused additional costs or a new timeline, the Contractor holds the right to either suspend, reschedule, or terminate the project. 

Section 11.06 Additional Refinement Cost Refusal. Feedback that significantly expands or contradicts previous instruction may incur additional cost. We will provide a quote for this extra work, where applicable.

If Client refuses to pay for additional refinements outside of the scope outlined from their "Last Call" date, Contractor holds to continue the project without Client’s input, without changes from delivery, to move towards the target project completion date. If 7 business days have passed, and client has refused additional costs or a new timeline, the Contractor holds the right to either suspend, reschedule, or terminate the project. 

Section 11.07 Proofing Responsibility for Errors. It is Client’s sole responsibility to adequately examine all work produced during the project. Client agrees to ensure that work is accurate and free of errors such as spelling mistakes, typos, incorrect retouched images and the like. Contractor will work on a best-effort basis to prevent errors and omissions in the website design and development. 

Section 11.08 Errors and Omissions. Client agrees to relieve and hold Contractor harmless from all liability involved with potential errors and omission. 

For the avoidance of doubt, this also includes the diligent execution of User Acceptance Testing, and impact on your downstream systems for new features and product releases.

Contractor is not liable for any errors or omissions on your part. Contractor cannot guarantee that the functions contained in any web pages or in a completed website will always be error-free, as such Contractor will not be liable to Client or any third party for any direct or indirect damages, including (but not limited to) lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of, or inability to operate this website and any other web pages, even if you have advised us of the possibilities of such damages.

Section 11.09 Approval Format and Medium. 

Approvals via Text or Social Media will not be accepted. 

Clear formal approval must be done via a recorded meeting or in writing via Email, Slack, or ClickUp that creates a record of approval.

Clear, concise and consistent feedback on the Work product for the Contractor to revise to clients taste without leaving any assumption of final result.

Disrespectful aggressive feedback will not be tolerated and if continues contractor after escalation, Contractor has the right to terminate project.

Section 11.10 Designated Approval Stakeholder Policy. Review, refinement requests and approvals from one (1) designated stakeholder that has power and rights within the Client's business to provide Contractor with accurate and final feedback and formal sign off. 

Client understands that approvals and refinement requests from other stakeholders can create confusion, unclear and conflicting feedback which can cause Contractor to not deliver their best work which can cause project delays and extra costs.

Section 11.11 Deliverables for Feedback Locations. Client has agreed to work with the contractor on a cycle based approach to all deliverables. In general, Contractor will provide private or public links to deliverables via ClickUp/email. The locations of feedback include, but are not limited to:

1. Google Docs
2. Clickup tasks associated with the deliverable
3. Figma prototype and edit views
4. Google Drive files
5. Shopify
6. Slack

Section 11.12 Feedback Medium and Location. All requests for feedback on deliverables, scope clarification, materials, and information from Client must be written and documented through the above locations AND inside the associated ClickUp task with a record of the time and person responsible for feedback. We request that the client make all refinement requests in a checklist format for the Contractor to do their due-diligence in doing all edits in a detail-oriented manner.

If the request is made verbally via a Loom video or Google Meet call, Client and Contractor agree to document the request in the ClickUp meeting minutes and associated task. Client agrees to hold Contractor harmless for missing requests made verbally that are not documents in written format. Email feedback, google docs, and other mediums outside of the mediums listed above will not be accepted or considered as official delivery of Client feedback or materials.

Section 11.13 Approval and Refinement Feedback Policy. Contractor has a set feedback guidelines policy we expect Client to review and respect for providing consistent, collaborative, and considerate feedback.

Section 11.14 Exceptions. 

Contractor and Client will always clearly state when feedback is expected, and agree to in good faith, proceed with flexibility for the human-ness of the creative process.

Client understand that Contractor may, at times, have contradicting opinions of client's requested feedback in the spirit of the betterment of the end-result of Contractors work product. Client and Contractor agree to, in good taste and without harassment, pursue any dispute resolutions and conflicts of opinion in a respectful, friendly and professional manner.

ARTICLE 12

ASSUMPTION OF RISK

Client and related parties/ participants expressly assume any risk of service and related activities as described herein.

1. Limit of estimated feasible outcomes. Contractor will provide design implementation based on a template (for Semi Custom) Client approved of and Client agrees Contractor to design within and around the parameters software and coding language and limitations, due to your budget, your timeline, and our reasonable ability to implement promised features in your design prototype, or be subject to additional per-feature fees to customize the template which require additional investigation, scope, risk assessment, design, approvals, development, testing, training and support or theme customizations needing additional hours which are defined as "out of scope" at the discretion of the Contractor. Please see the Appendix A for our policy on scoping by points.
2. Limit of estimated feasible outcomes. Contractor will provide design implementation based on a template (for Semi Custom) Client approved of and Client agrees Contractor to design within and around the parameters software and coding language and limitations, due to your budget, your timeline, and our reasonable ability to implement promised features in your design prototype, or be subject to additional per-feature fees to customize the template which require additional investigation, scope, risk assessment, design, approvals, development, testing, training and support or theme customizations needing additional hours which are defined as "out of scope" at the discretion of the Contractor. Please see the Appendix A for our policy on scoping by points.
3. Access risks. Contractor may not be able to deliver all services if Client or Merchant cannot give Contractor access to all Materials–such as but not limited to software, logins, given brand details, photography, or incomplete copy or requirements–that leaves Contractor to assume final expected result.
4. External system downtime and outage. There is a possibility that due to external systems and cloud hosted software and potential errors beyond our control that Contractor must use to provide Services may experience interruption, inaccessibility or downtime (e.g. Shopify system and Partner Portal, Amazon Web Services (AWS) servers downtime, Google Analytics Dashboard, ReCharge App Portal, Figma design app server downtime) and we may be prevented from successfully executing our Services for any milestone. We will work with Client and Merchant and Software partners to resolve these issues on a best effort basis.
5. Re-establish timeline for external system dependencies. Due to external errors as stated above, Contractor may need to reestablish a timeline for completion of the milestone or project and will provide an amended contract with our no-change request deadline at no cost to the Client.
6. No result promised. Client understands that Services provided do not promise a specific conversion result, as conversion has multiple contributing factors (like traffic quality, campaign volume, seasonality, traffic up-time, economic factors, product availability, merchandising and more). Client releases Contractor from obligations to reach a specific conversion metric, and understands that Contractor is equipped to provide a service to the best of their current ability, knowledge and experience.
7. Additional features uncovered and scope creep. Client understands that additional feature requirements may be uncovered during the kickoff and design phases of the project that might add additional scope to the services that will need to be considered "new scope" or net new projects to be quoted out separately from this provided estimate. 
8. New scope. New scope could include, but is not limited to: new business requirements that require additional apps or investigation not uncovered during the discovery call that are needed to be installed and need to be reconfigured for the redesign, scripts or app configurations needed to add functionality or features for a minimum-viable-product, or new pages and content not uncovered during the discovery call.
9. Reasonable limit of knowledge. Client understands that Contractor cannot reasonably estimate these unknowns into the project from our Clarity/Proposal review calls. New feature requirements, refinements, new concept production, and other elements out of scope might require an additional cost to complete and additional time added to the timeline.
10. New scope affecting timeline. Client understands that new feature or scope changes may impact Client's timeline adversely and Contractor may not be able to provide the amended scope if it conflicts with other projects booked in Contractor's schedule around Client's first estimated project completion date in the first signed draft of this agreement;
11. Additional charges for apps. Client understands that new apps with a monthly cost may need to be added to their Store setup to achieve the design and functionality as described or requested. Client understands that Contractor cannot reasonably have in-depth knowledge of all apps on the app store and investigation, development and design limitation will occur that may change the final product or alter timelines to develop.
12. Unexpected illness/death/mental health leave. Client understands that Contractor and their subcontractor(s) may experience unexpected illness, medical leave, or personal emergencies that may impact Contractors ability to deliver services on time. Contractor will attempt to keep project on schedule, but extenuating circumstances may require Contractor to change the Client's milestone delivery timeline(s) or find a suitable subcontractor(s) to complete Services.

ARTICLE 13

INTELLECTUAL PROPERTY

Section 13.01 Due Diligence. Client agrees to exercise due diligence in the direction to Contractor regarding the preparation of materials and must be able to substantiate all claims and representations. Client is responsible for all trademark, copyright, patent infringement and other intellectual property clearances. Client are also responsible for arranging, prior to publication, any necessary legal clearance or approvals in respect of materials that Contractor prepares. Client agrees to indemnify and hold Contractor harmless against any and all claims, costs, losses and expenses (including legal fees) in respect of any materials included in the Work at Client’s request for which no copyright permission or previous release was requested or uses which exceed the uses allowed pursuant to a permission or release.

Section 13.02 Preliminary Works. Contractor retains all ownership rights to the work product until full and final approval and payment is provided by the Client. In the event of early termination or cancellation, Client is not entitled to any work that was completed by Contractor prior to cancellation of the agreement.

Contractor retains all rights in and to all Preliminary design and/or code material not approved for production use for the prototype or final website design or email or whatever work product in scope in the services rendered. Client shall return all Preliminary code, designs, strategy to Contractor within thirty (30) days of completion of the project and all rights in and to any Preliminary works shall remain the exclusive property of Contractor for reuse or resale, excluding Clients copyright assets such as snippet resells. 

Client agrees that Contractor holds the rights to working files and can re-package and redistribute elements of their website implementation or code for re-sale or training in other product suites by the Contractor. 

Contractor retains all copyright and trademark rights in any and all prototypes, mockups, drafts, and unapproved content submitted or un-submitted to Client over the course of this Agreement.  Contractor agrees to make reasonably enough changes for these works to not be identical to the Client's outputs. 

Section 13.03 Copyright. Contractor retains all ownership rights to the work product until full and final approval and payment is provided by the Client. In the event of early termination or cancellation, Client is not entitled to any work that was completed by Contractor prior to cancellation of the agreement. Upon final approval by Client, Designer hereby transfers ownership rights solely to the intellectual property of the final deliverables created on behalf of the Client with Designer retaining all copyright and trademark rights in any and all prototypes, mockups, drafts, and unapproved content submitted or un-submitted to Client over the course of this Agreement.

Client agrees to negotiate a buy-out package with Contractor if Client wants full exclusive and Royalty Free Rights to all work products created in the Services. 

Client releases Contractor from assignment of Copyright to any claim of work product not used. 

Section 13.04 Prohibited Uses of Designs. Some uses of Contractor’s property are expressly prohibited in order to maintain the integrity and quality of Contractor’s reputation and work.

1. Any resale of the designs through direct or indirect means, including, but not limited to: selling the designs as stock designs; selling or allowing use of the designs by a third party such as a corporation or advertiser to make templates for sale to other businesses.
2. Any use deemed unreasonable or defamatory, at the discretion of Contractor.

ARTICLE 14

EXCLUSIVITY AND RELEASE

Section 14.01 Exclusivity. Client understands and agrees Client has hired Contractor exclusive of any other service provider for the Services listed in this Agreement, and no other Contractor's, other than any assistant or third party that Contractor has hired to complete the Services, are permitted to provide the same Services, paid or unpaid, unless prior permission is granted by Contractor during the time of service.

Section 14.02 Release of Rights to Showcase. Contractor reserves the right to use selected screenshots from the final product in Contractor’s online portfolio. The Client releases the website design and development to the Contractor to retain all rights in and to all work produced for use of the Contractor's personal business promotion on its personal and/or business website, social media account(s) and solicitation of new business. Contractor agrees to assign copyright of all website design to Client and merchant.

Section 14.03 Release of Non-Compete. Client understands that Contractor works with product-based clients and other service based design agencies worldwide, and waives Client's right to disallow Contractor from serving other businesses in the same niche or market competition as Client or Merchant. Contractor will make reasonable effort to inform Client of a possible conflict of interest and agrees not to disclose business or trade secrets to competing clients. Client understands and agrees to a reasonable amount of risk loss of trade secrets when hiring a Contract specialist who works with other businesses in their niche - in exchange for niche and subject matter expertise from the Contractor on their behalf. Client releases Contractor to publish and distribute case studies of Contractors work product to showcase performance of Contractor's service to advertise for the purpose of securing additional service contracts. Contractor will make a reasonable effort to keep confidential financial information private and not disclose data that would hold the Clients business to harm in a conflict of interest prospect.

Section 14.04 Style Release. Client has spent a satisfactory amount of time reviewing Contractor's work or past client reviews and has a reasonable expectation that Contractor's Services will produce a reasonably similar outcome and result for Client. Contractor will use reasonable efforts to ensure Client’s services are carried out in a style and manner consistent with Contractor's current portfolio and services, and Contractor will try to incorporate any suggestions Client makes. However, Client understands and agrees that:

1. Every Designer and final design is different, with different tastes, budgets, and needs;
2. Design is a subjective service and Contractor is a provider with a unique vision, with an ever-evolving style and technique. However the website either does or does not work in a manner sufficient to accept payments or display in a manner that other users can read and access the content;
3. Contractor will use their personal judgment to create favourable results for Client, which may not include strict adherence to Client’s suggestions;

Section 14.05 Maximum Damages. Client agrees that the maximum amount of damages he or she is entitled to in any claim relating to this Agreement or Services provided in this Agreement are not to exceed the Total Cost of Services provided by Contractor.

Section 14.06 Limit of Claim. If Client wishes to pursue legal action arising out of or related to this Agreement, the claim must be filed on or before November 22 2023. 

Section 14.07 Warranty. Client represents and warrants that the Client owns or has proper and legal license to utilize all photographs, text, artwork, graphics, designs and all other materials provided by the client for incorporation in the project. Client shall indemnify and hold Contractor harmless from all losses and cleans, including attorney’s fees and legal expenses, that may arise out a claim or suit from a third party related to such materials. 

Section 14.08 Indemnification. Client agrees to indemnify and hold harmless Contractor, its related companies, parties, affiliates, agents, independent contractors, assigns, directors, employees and officers from any and all claims, causes of action, damages or other losses arising out of, or related to, the Services provided in this Agreement. Client agrees to either secure a reasonable amount of insurance coverage to pay for any claims, causes of action, damage, attorney fees or other losses as a result of accident or negligence on behalf of the Parties to this Agreement, or if no insurance is secured, Client waives its right to directly or indirectly ask or force Contractor to pay for any such damages.

Section 14.09 Non-Disparagement. The Parties mutually agree not to make public defamatory statements that would materially harm the reputation or business activities of any Parties to this Agreement.

Section 14.10 Confidentiality. Parties will treat and hold all information of or relating to this Agreement, the Services provided and the Parties’ businesses in strict confidence and will not use any of this information except in connection with fulfilling the terms of this Agreement, and, if this Agreement is terminated for whatever reason, Parties will return all such information, including account access information, and any and all copies to the original Party and will remain bound to the Confidentiality provision of this Agreement. Confidential information (herein “Confidential Information”) means information that is of value to its owner and is treated as proprietary or confidential including, but not limited to, intellectual property, inventions, trade secrets or information, financial data or information, speculation, knowledge, general Company data or reports, future business plans, strategies, customer lists and information, client acquisition strategies, advertising campaigns, information regarding executives and employees, and the terms and provisions of this Agreement.

Further, at all times neither Party shall use or disclose any Confidential Information relating in any way to the past, present, or future business affairs, conditions, clients, customers, efforts, employees, financial data, operations, practices, products, processes, properties, sales, or services of or relating in any way to the Company in whatever form to any parties outside of this Agreement.

This Agreement imposes no obligation upon the Parties with respect to any Confidential Information that was possessed before initial business interactions commenced between the Parties; is or becomes a matter of public knowledge through no fault of receiving Party; is rightfully received from a third party not owing a duty of confidentiality; is disclosed without a duty of confidentiality to a third party by, or with the authorization of the disclosing Party; or is independently developed by either Party without prior knowledge of privileged or confidential information.

Section 14.11 Relationships of the Parties. Contractor and any related sub-contractors are not employees, partners or members of Client’s company or organization. Contractor has the sole right to control and direct the means, manner and method by which the services in this Agreement are performed. Contractor has the right to hire assistants, subcontractors or employees to provide Client with its Services. Parties are individually and separately responsible for their own business operation and expenses, including securing or paying any licensing fees, insurance, taxes, registrations or permits. Client is not responsible for paying for any benefits, Workers Compensation, insurance or unemployment fees to Contractor.

Neither Contractor nor Contractor's employees or contract personnel shall receive any training from Company in the professional skills necessary to perform the services required by this Agreement;

1. Neither Contractor nor Contractor's employees or contract personnel shall be required by Client to devote full time to the performance of the services required by this Agreement.
2. Contractor and Contractor Personnel shall utilize at least the degree of skill and care as is customary in their field of expertise.
3. Contractor, Contractor Personnel and the Company shall treat each other with courtesy and mutual respect. The Parties will not engage in any conduct that could be considered hostile, discriminatory, threatening or that could constitute harassment.

ARTICLE 15

CANCELLATIONS, TERMINATION AND RESCHEDULING 

Section 15.01 Client Desires to Terminate, Cancel or Reschedule.

1. Early Termination Kill fee. If Client wishes to cancel, for any reason at any time prior to 5 days before service, or Contractor has to cancel the project due to Client withholding approval, refusing to pay for additional refinements, Client is withholding materials, Company reserves the right to charge a cancellation fee of 20%.
2. Rescheduling limits. Client may not reschedule the Service more than 1 times, up to a maximum of 2 reschedules. Rescheduling must happen no later than 10 days prior to service or consider their project deposit forfeit.
3. Reassignment of timeline at Contractors discretion. Client agrees that Contractors delivery timeline may be significantly impacted by new or revised scope, delay or refusal of feedback, delay or refusal of delivery of materials for Services based on their workload and Client accepts that the original estimated timeline may not be able to be carried forward. Client understands that rescheduling may put their project into a waitlist period, up to 2+ months, to provide services or a time at the discretion of the Contractor.
4. Contractor will not be obligated to refund any portion of monies Client has previously paid to Contractor. If Contractor is not able to re-book further services on or before Client’s final delivery date, Client may be issued a credit for future services with Contractor at Contractor’s discretion. Contractor has no obligation to attempt to re-book further Services to make up for Client’s cancellation, no show, or rescheduling.
5. This purchase of your deposit is non-refundable but may be transferred to another date or service with 10 business-days prior written notice. The Client's deposit is valid for 90 days, and must be used within that timeframe. In the event the design or development fails to occur within 90 days, or the Client fails to request a new date at least 15 days prior to their booked project timeline, the deposit will be forfeited, and the service will be terminated.  If the Client wishes to reschedule beyond 90 days, the original deposit may, at the Contractors discretion, be applied to a new booking at the current hourly rate, which may or may not be higher than the original booking rate and may or may not include less deliverables at the discretion of the Contractor.
6. Upon Cancellation, all previously accrued and outstanding fees are immediately due and payable to Contractor. Providing notice will not leave Client of any currently outstanding financial obligations on one time services, further Contractor will not be obligated to refund any portions of monies paid by Client.
7. Parties agree that termination for any reason does not result in the transferring of ownership rights to intellectual property created by Company. Company shall retain all ownership rights and rights will only be transferred upon a written agreement between the two parties at the time of cancellation or termination.

Section 15.02 Contractor Desires to Cancel or Reschedule. In the event Contractor cannot or will not perform its obligations in any or all parts of this Agreement, Contractor will excuse Client of any further performance and/or payment obligations in this Agreement and:

1. Immediately give Notice to Client;
2. Issue a refund or credit based on a reasonably accurate percetage of Services rendered; and/or
3. Provide a reasonable replacement. 

Section 15.03 Notice. 

1. Notice of Cancellation: If Client desires to cancel Retainer Services of Contractor for any reason at any time, then Client shall provide 60 days’ notice to cancel this contract. If the request for cancellation occurs after Client has provided final approvals, Client shall not be entitled to any refunds. If Client desires to cancel services of Contractor, Client must provide 60 days’ notice.
2. Method of Notice: Parties shall provide effective notice (“Notice”) to each other via either of the following methods of delivery at the date and time which the Notice is sent:

1. Email: 
1. Contractor’s Email: hello@arqdesign.studio
2. Second Client’s Email: As entered in checkout or their Client Account

Section 15.04 Force Majeure. Either party may choose to be excused of any further performance obligations in the event of a disastrous occurrence outside the control of either party that materially affects the performance of Services, such as: power grid loss, arson, building fire, an act of God (fires, explosions, earthquakes, hurricane, natural disasters, flooding, storms or infestation), or War, Invasion, Act of Foreign Enemies, Embargo, or other Hostility (whether declared or not), or any hazardous situation created outside the control of either party such as a riot, disorder, nuclear leak or explosion, or act or threat of terrorism.

ARTICLE 16

NO-SHOWS AND PROJECT ABANDONMENT 

If it becomes impossible for Contractor to render Services due to the fault of the Client or parties related to Client, such as failure to provide necessary photography, copy content for copywriting service, on specified due dates, elements of the Services or failure of one or more essential parties to the Services to complete tasks in a timely manner, it is within the Contractor’s sole discretion to allow for any additional time or dates to render Services. In such an event, any outstanding amount will immediately become due and payable to Contractor.

ARTICLE 17

PROJECT SUSPENSION 

Contractor reserves the right to issue a 20% of total project cost restart administration fee to put project out of Suspension if Client fails to provide feedback, materials, content, formal approval and sign off, or other required feedback within the 7 day grace period, is a no-show, or is more than 30 days late on any scheduled payment. Contractor reserves the right to not refund the client for any payments during the period which the Client must wait for the project to restart. Client understands that if any of the reasons listed create a project restart, that the Client must pay for the restart administration fee plus the next installment before any work can continue. Client understands that their project deliverables may be rescoped, reduced, or simplified to deliver any final product on a new agreed timeline. Client understands that if her project is delayed because of a restart scenario, that her project timeline could be pushed back up to 16 weeks or as much as 6 months as the Contractor books other client services over the durations of Client's project with their own deliverable timelines. 

ARTICLE 18

GENERAL PROVISIONS

Section 18.01 Governing Law. The laws of Ontario, Canada govern all matters arising out of or relating to this Agreement, including torts.

Section 18.02 Severability. If any portion of this Agreement is deemed to be illegal or unenforceable, the remaining provisions of this Agreement remain in full force.

Section 18.03 Merger. This Agreement constitutes the final, exclusive agreement between the parties relating to the Services contained in this Agreement. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement.

Section 18.04 Dispute Resolution. 

Section 17.05 Headings. Headings and titles are provided in this Agreement for convenience only and will not be construed as part of this Agreement.

Section 17.06 Representations. The undersigned parties represent they have authority and legal capacity to bind the parties listed above under the terms of this Agreement. They further represent they have had opportunity to read and negotiate this agreement and fully understand the terms, rights, and obligations outlined herein.

Section 17.07 Assignment. This Agreement shall bind Contractor and Client and their respective heirs, legal representatives, successors, and assigns. Client may not assign its rights under this Agreement without express written consent from Contractor.

Section 17.08 No Guarantees; Disclaimer. Contractor makes no guarantees about the results Client may obtain from working with Contractor. Client agrees that any statements made by Contractor regarding potential outcomes are opinions and are not binding on Contractor. The results Client experiences will be dependent on many factors including but not limited to Client’s level of personal responsibility, commitment, and abilities, in addition to those factors that Client and/or Contractor may not be able to anticipate.

Section 18.09 Warranties. Both Contractor and Client warrant that they have full authority to enter into this Agreement. Designer warrants that its services will be provided by qualified people and in a competent manner in accordance with industry standards. Client warrants that it has any necessary permission, licenses, rights, and releases to lawfully execute its duties set forth in this Agreement.

Section 18.10 Whole Agreement. This Agreement constitutes the entire agreement between Client and Contractor. This Agreement supersedes and cancels all prior or contemporaneous oral agreements and written agreements including but not limited to conversations, messages, emails, and negotiations.

Section 18.11 Modifications; Waiver. The terms of this Agreement cannot be modified, supplemented, or amended unless agreed to in writing by all parties. The waiver of a term in this Agreement shall not be considered a waiver of any other terms of this Agreement and shall not be considered a continuing waiver. In order to make the waiver binding, the party making the waiver must execute it in writing. The modification or waiver of one term of this Agreement does not affect any other term in the Agreement, regardless of its similarity. 

No agent, employee, or other representative of either party is empowered to alter any of the terms hereof, unless done in writing and signed by an executive officer of both parties. No modification of either party, which would have the effects of modifying the obligations of the other party (except as to lessen the same), shall be effective unless a memorandum regarding the same is executed by an executive officer of both parties.

Section 18.12 Severability. If any term in this Agreement is found to be void or voidable, the remaining terms of the Agreement are unaffected, and deemed to remain in full force and effect, including those terms that are similar.