Client Terms and Conditions

Treefrog Inc. (“Treefrog” and the “Company”) is a provider of services that include graphic design, social media, search engine optimization, website design and development, app design and development, custom system design and development, IT infrastructure, email, and website hosting and domain name services, amongst other services. The Terms define below set out the Conditions under which Treefrog will provide Services to the Client. Treefrog reserves the right to change, edit, add, or in other ways alter these Terms and Conditions, with due notice.

1.0 Services

Treefrog shall provide services pursuant to Statement(s) of Work (“SOW”) that are agreed upon and executed by Treefrog and the Client, and that will set forth the detailed description of the work, deliverables, and compensation for each project. Each SOW shall be issued in accordance with these Terms and Conditions. If the Client wishes to alter or expand the scope of the Services to be performed, or requests that Treefrog perform Services not covered under a previously executed SOW, Treefrog and the Client (separately referred to as a “Party,” and collectively referred to as the “Parties”) will revise and execute a new SOW prior to Treefrog’s commencement of the expanded or new Services, or document such in writing, with both Parties agreeing to the requested Changes of Scope.

Treefrog will use reasonable endeavours to provide the Services in accordance with an agreed-upon timescale but will not be liable to the Client when, despite these reasonable endeavours, the Company fails to meet (any part of) the timescale. To clarify, such reasonable endeavours shall entail Treefrog’s balancing its contractual obligations to the Client with its own commercial interests, i.e., taking a reasonable course of action to achieve objective(s) stated in a SOW. (For further clarity, the steps, activities, and efforts that Treefrog typically associates with its projects will be listed in appendices to a SOW.)

Treefrog reserves the right to improve, correct, modify, or substitute any of the Services at any time, including substituting Software and Equipment with Software and Equipment that is as good, if not better, when the Company considers this necessary for improving the client experience or enhancing the work’s reliability, to achieve the desired outcome.

2.0 Bulk Hours

For clients with complex project needs, and for clients who are looking for quick turn-around on their work, Treefrog offers “Bulk Hours” that clients can purchase in advance of work being commenced.

Bulk hours are applicable towards graphic design, UX design, print design, content development, website programming, mobile programming, project management, administration, and related Treefrog services. These are billed at the keyboard hours, meaning that the client is only billed hours of actual development, administrative, or professional activity.

If the Client pre-pays hours based on an estimated budget, Treefrog will provide updates on the status of the project, at a frequency agreed to in the SOW. Treefrog will provide the client with a time estimation for each project and secure approval prior to commencing each project when appropriate.

Notes:
• Bulk Hours must be paid for in advance, in full, to Treefrog, before Bulk hours are applied towards eligible development and professional hours. Failure to pay in advance will result in the Client Timelines likely being delayed due to a delay in the start-time of the project work.
• Bulk hours are non refundable, non transferrable to alternate professional services offered by Treefrog or other related costs. Hours are to be used within twelve (12) months of purchase – after one year of lack of contact from the Client, the hours and prepaid amounts are forfeited.

3.0 Payment

Treefrog will not start the agreed-upon work until payment has been made in full, with no holds. With respect to payments, the following apply:

a. Payment terms will be listed in each SOW.
b. All funds are in Canadian dollars.
c. Prices listed in the SOW are solely for the services and products listed under the “Deliverable(s)” description of the SOW.
d. The project costing in each SOW is based on the Company’s expectation that the project will be delivered in its entirety.
e. Acceptable payment methods include cash, preauthorized debit, electronic transfer, company cheque, certified personal cheque, and valid credit card, provided that an amount be under $2,500.
f. Any charges incurred by Treefrog related to a lack of sufficient funds in the Client’s account (“NSF”) will be reimbursed by the Client.
g. Where applicable, Payments that are more than thirty (30) days overdue may be subject to a 1.5% monthly late fee.
h. Where applicable, Payments that are more than thirty (30) days overdue may result in revoked support of services or a shutdown of all Services. At Treefrog’s discretion, a Letter of Termination may be provided to the Client with thirty (30) days’ notice, prior to any services by revoked.
i. Treefrog reviews each invoice for accuracy before sending this to the Client. However, it is important that the Client promptly review invoices. If the Client believes an error was made on an invoice or any portion thereof, the Client shall contact Treefrog promptly to discuss the issue. Unless the Client informs Treefrog in writing of disapproval of billings or ongoing charges, Treefrog will continue to provide Services in accordance with the SOW billings schedule. The Client agrees that Invoices are due on receipt by client. In case of a dispute regarding an invoice or a portion thereof, the Client’s payment obligations shall continue to apply to all undisputed portions of such invoice.
j. Final payment is due prior to Treefrog delivering the final product or sending a website live*. In the case of a website going live, the understanding that some deliverables, such as search engine optimization (“SEO”), may be completed by Treefrog after going live.
k. Where applicable, recurring payments received seven (7) days after the invoice issue date are subject to an administration fee of $90.00 + HST.
l. Where applicable, delays to the project caused by the Client of more than 30 days are subject to a monthly administration fee of 3% of the project value for each 30-day period from the point of last communication by the Client.
m. Where applicable, Hosting and/or license fees are effective immediately after going-live* of the website. Further, Hosting and/or license fees are also applicable if the project has been installed on Treefrog servers and timelines are paused or affected by the Client for more than 60 days.
n. Where applicable, Treefrog recommends and applies suitable hosting level deliverables required for the demands of the Client’s site(s) or system(s). Treefrog reserves the right to review and advise of hosting level changes with a 30-day notice of billing change to protect, provision, and sustain services to the Client at an industry standard level.
o. If the Client requires Treefrog staff members to travel to the Client’s site, all travel expenses will be invoiced to the Client at cost. Time may be invoiced to the Client at a rate of $150.00 + HST per hour per person.
p. If the Client requires Treefrog to courier items to the Client, courier costs incurred on behalf of the Client will be invoiced to the Client.
q. Payment by the Client will be deemed to have been completed when funds are in Treefrog’s possession, and any holds have been removed.

*Note: a website is considered to “going-live” when Treefrog connects the newly built website to the Client’s domain name and makes it visible to people searching for the Client on search engines, such as Google.

4.0 Use of Materials Created
a. Upon receipt of final payment by Treefrog, the Client will have the right of unrestricted use of any intellectual property, materials, code, and artwork created for the Client under the SOW.
b. The Client warrants that all content, including verbiage, graphics, images, videos, drawings, downloads, pictures, artwork, iconography, and fonts provided by the Client is owned by the Client or that the Client has secured the appropriate permissions from the Owner to use such content.
c. Treefrog warrants that all artwork, code, and materials developed by Treefrog are based on convention industry standards and best practices.
d. Treefrog and its designers reserve the right to include a design signature on websites and to use samples of work (logos, websites, and other graphic designs that they have created) for use in Treefrog marketing and reference materials, tradeshows, and portfolios.
e. Treefrog reserves the right to duplicate and re-use non-identifiable or duly anonymized (generic) code or code snippets that the Company wrote, created, or modified in relation to the Client’s project for other business purposes, as it sees fit.
f. Authority of Use:
i. Where applicable, the Client warrants that all attendees of any Training provided by Treefrog have agreed to use their personal social media accounts for learning activities. Treefrog warrants that all training activities requiring posting of content will be suitable and appropriate content that will uphold Treefrog’s professional standard. The Client acknowledges that training hours and training period are determined by limits as set in the SOW, and that Treefrog staff will be available between the hours of 9:00 a.m. to 5:00 p.m. (Eastern Standard Time) to conduct such training.
ii. Social Media accounts owned by the Client, or accounts for which the Client has been granted the appropriate permissions, may be used for demonstrations with Authority where content changes and postings are approved in advance by the Client.
iii. Where applicable, Treefrog will use the best available resources for a project, based on the Company’s expertise, and subject to the timelines and industry standard as to when the project is being developed. This may include the use of royalty-free images, open-source code, one-time downloads, and other usage the Company deems appropriate for the project. Where images or code are used which have restricted rights, Treefrog will notify the Client accordingly.

5.0 Confidential Information

All information and design concepts discussed between the Parties remain confidential and cannot be released by either the Client or Treefrog without written consent from the other Party.

“Confidential Information” is defined as all information concerning Treefrog and its employees, the Client and its employees, Clients and vendors, including designs, drawings, specifications, models, software, customer lists, business plans, marketing plans, product development information, brand strategies, strategies for new products, financial information, pricing strategies, business strategies, research techniques, Client or prospective Client information, source codes, object codes, training content and materials, trade secrets, and quality assurance processes and materials that are not known to the general public.

As a rule, the Parties shall assume that any information they become privy to or aware of during their collaboration, including information concerning any of the Parties’ employees, clients, and customers, and information that may come up in conversations that the Parties and their employees may be part of or overhear, is confidential.

Treefrog and the Client agree to:
• hold the Confidential Information in confidence
• take reasonable precautions to protect such Confidential Information
• not divulge any such Confidential Information to any unauthorized person, and
• not make use whatsoever, at any time, of such Confidential Information except as required to fulfill the required services of a SOW.

Both parties shall, at all times, whether during or subsequent to the terms and conditions of Treefrog, maintain the confidentiality of such information and shall not disclose any such information, directly or indirectly, to any other person without the prior written consent of the other Party.

Treefrog reserves the right to make use of industry-standard cloud-based software, i.e., Salesforce, Wrike, and Basecamp, that may contain confidential information. Treefrog will proactively endeavour to ensure all information remains confidential.

Treefrog and the Client agree to not disclose or transfer the other Party’s personal data to third parties for marketing purposes without that Party’s prior written consent.

6.0 Changes to SOWs

a. The Client agrees that additional fees may apply if the Client requests major changes1 or products that are not outlined in the SOW,
b. Late deliveries of materials from the Client required for the project will impact critical path timelines. This includes copy, artwork, feedback, and sign-off.
c. Each deliverable, unless specified otherwise, includes one (1) minor revision2. Revisions requested by the Client that exceed the included number will be invoiced hourly at Treefrog’s standard hourly rate.
d. Where applicable, changes to the websites, content, or digital assets, once these have been presented to the Client for the going-live, will be billed at Treefrog’s standard hourly rate.
e. Where applicable, funds that either Party receives by way of a grant are to be used for the sole purpose of the grant allocation and cannot be substituted for the purchase or provision of other services.
f. Where applicable, changes made to the Services under a recurring SOW for Marketing Partnership or Single Service Retainers require a minimum of two (2) billing cycles’ notice. If the change is greater than 15% of the total amount, Treefrog will require an updated marketing strategy, which will take effect in the invoice cycle following the one during which notice was given. A fee may be charged for this change in strategy.
g. Where applicable, changes1 that third parties make to their systems and/or Application Programming Interfaces (APIs) may impact the Client’s website, but are outside of Treefrog’s control. As a result, any resulting changes required of Treefrog are outside the scope of the SOW and therefore billable. This includes social media systems, Application Program Interfaces (APIs), Really Simple Syndication (RSS newsfeeds), device operating systems, and browser versions.

1 “Major Changes” include requests made for deliverables of services that are not listed in the SOW and significant changes to a deliverable that has already been approved by the Client, such as architectures, graphic design, programming scopes, etc., with the determination to be made based on Treefrog’s professional interpretation of deliverables.

2 “Minor Revisions” include requests made for deliverables of services that do not require a significant reallocation of Treefrog resources, with the determination to be made based on Treefrog’s professional interpretation of deliverables.

7.0 Excused and Delayed Performance/Force Majeure

Treefrog shall not be responsible or liable for any failure or delay in the performance of its obligations under an SOW arising out of or caused by, directly or indirectly, unforeseeable and unpredictable events or forces beyond its control, including natural disasters, government orders or laws, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, epidemics and pandemics, and loss or malfunctions of utilities; it being understood that Treefrog shall use reasonable endeavours to resume performance as soon as practicable under the circumstances.

8.0 Interpretation of Scope

If the Parties are in conflict about the scope of a project (for instance, due to a misunderstanding on the Client’s part), Treefrog’s professional interpretation of deliverables, as outlined in the SOW, shall prevail, and serve as the basis on which the work was quoted and, therefore, serve as the basis of what will be delivered and billed. This applies as well if Treefrog, for whichever reason, remained unaware that the Client changed the scope of a project, in which case Treefrog reserves the right to invoice the Client retroactively. Work is to be delivered at Treefrog’s standard hourly rates as divisible into the overall project value.

9.0 Ghosting

If the Client fails to communicate with Treefrog on a project for a period of at least five (5) weeks, despite Treefrog’s attempts to connect by phone or email, Treefrog will deem the project to be on hold, and an administrative fee of 10% of the value of the project as stated in the SOW, as well as any hosting and licensing fees, will be owing to Treefrog. Any payments made by the Client and being held in trust by Treefrog will be forfeited after 12 months. Any previously agreed timeframes or deadlines will be null and void and will need to be reassessed upon resumption of communication by the Client.

Once a project is placed on hold, should the Client resume communicating and wish to restart the project, another administrative fee of 10% of the value of the project as stated in the SOW, as well as any additional or new hosting and licensing fees, will be owing to Treefrog.

10.0 Terms of Use

In acknowledgment of Treefrog’s Cancellation Policy (to be provided in an appendix to the SOW), the Client warrants that any product or service delivered by Treefrog will be used in compliance with legal requirements. This includes the Client warranting that any third-party content licensed by Treefrog for the Client’s project will only be used for the project. It is the sole responsibility of the Client to monitor and assess compliance as well as the quality, adequacy, accuracy, completeness, currency, validity, and usefulness of opinions, advice, services, and other information provided on the website. User violation of this policy may result in the suspension or cancellation by Treefrog of Client access to its website, the LEAP™™ Content Management System, servers, tools, information, and databases.

11.0 Termination

When Treefrog and a Client enter into an agreement for the delivery of a project or provision of Services by Treefrog and the Client decides to terminate the Agreement, payment will be owed by the Client as per the provisions and notice periods below.

a. Project SOW: either party may terminate a Project SOW by giving the other Party thirty (30) days’ written notice. In case the Client initiates the termination, the Client will pay Treefrog for work undertaken and expenses incurred (or any outstanding SOW) up to and including the last day of the 30-day notice period.
b. Recurring Services SOW: Recurring Services SOWs may be terminated by either Party by giving the other Party the following notice:
o Recurring Hosting services require a minimum of thirty (30) days’ written notice and payment by the Client to Treefrog for work undertaken and expenses incurred (or any outstanding SOW) by Treefrog, up to and including the last day of the 30-day notice period.
o Recurring Marketing Partner or Single Service Retainer require six (6) billing cycles’ or ninety (90) days’ written notice and the payment by the Client to Treefrog for work undertaken and expenses incurred by Treefrog, up to and including the last day of the 90-day notice period.
c. Upon termination of a SOW for any reason, Treefrog reserves the right to collect payment for revenues earned up to that point, based on time allocated to the project, which represents cost that Treefrog will already have incurred. Treefrog will provide the Client with a breakdown of all time allocated to the project, up to and including the date of termination. This includes deliverables listed in SOWs, consultation, internal meetings, project management, accounting, administration, and correspondence and meetings with the Client. The allocated-time fee will be calculated based on Treefrog’s standard hourly rate.
d. Where applicable for recurring services, if the Client terminates the SOW without honouring the notice period agreed upon within the SOW, Treefrog reserves the right to collect outstanding amounts owing up to and including the last day of the applicable notice period, and no additional amounts will owe.
e. If Treefrog terminates a SOW prior to completion of a project, all fully paid intellectual property, materials, code, and/or artwork will be made available to the Client at no charge.
f. Should the Client cease to communicate with Treefrog for a period of more than 30 days in the development stages, Treefrog reserves the right to collect payment for the billings2 up to that point (which represents actual cost that Treefrog will already have incurred), and the SOW will be considered terminated.
g. Where applicable, Treefrog and the Client understand and agree that if a SOW is terminated, the Client may need to release sufficient information to enable Treefrog to transfer the website to another party. Backups of all intellectual property, materials, code, and artwork may be provided for a fee, conditional on the Client’s account being current.
h. Upon termination of the entire SOW and receipt by the Client of all required properties, Treefrog reserves the right to delete all installed intellectual property, materials, code, and artwork from its systems.
i. Treefrog reserves the right to destroy all project-related collateral upon completion of the project or within thirty (30) days of the project going live or being delivered to the Client.
j. Treefrog is obligated to take all reasonable precautions to protect the health and safety of its employees and provide them with a safe, healthy, and respectful work environment. Therefore, Treefrog reserves the right to end the business relationship with the Client without notice when, for example, the Client subjects Treefrog employees to harassment or abuse. In such cases, the Client will owe payment for work undertaken and expenses incurred by Treefrog up to and including the day of termination, as well as for cost that Treefrog incurred based on time and resources allocated to the project.

2 “Billings” are calculated based on the number of hours invested by Treefrog from the commencement of the project to the date of notice of termination and billed at Treefrog’s standard hourly rate. Should the project investment be greater than the current billings received, the Client will be invoiced for the difference. Should the project investment be less than the current billings received, a credit for the difference will be applied to the Client’s account for use at a future date.

12.0 Solicitation of Employees

During the term of an active SOW, and for a period of one year after its completion, termination, or expiration, the Parties agree to:

1) Pay the other Party an amount of $5,000 if they, for their own purposes or the purposes of any third party, directly, or indirectly through a separate legal entity, solicit for hire (whether by employment or as an independent contractor) any person who is in the employment of the other Party or has been in the employment of the other Party in the year prior to such solicitation.
2) Pay the other Party if they, for their own purposes or the purposes of any third party, directly, or indirectly through a separate legal entity, hire (whether by employment or as an independent contractor) any person who is in the employment of the other Party or has been in the employment of the other Party in the year prior to such hiring, an amount equivalent to 150% of the new hire’s annual compensation.

13.0 Limitation of Liability, Indemnification, Governing Laws, Notices

Limitation of Liability: Upon completion of the SOW, Treefrog shall not be liable to the Client for any compensation, reimbursement, or damages for any loss of anticipated sales or profit, or for any other loss whatsoever.

Indemnification: The Client agrees to defend and indemnify Treefrog against and hold Treefrog harmless from any claims, demands, judgments, causes of action and all liabilities, damages, and expenses resulting therein, including personal injury, property damage, third-party claims against Treefrog related to the Client’s use of the website, digital assets, and associated applications. Where applicable, the Client further agrees to indemnify Treefrog against all judgments from third-party use of the website.

Governing Laws: The Terms and Conditions shall be interpreted and construed according to and governed by the laws of Ontario, Canada. The federal or provincial courts located in Newmarket, Ontario, Canada, or York Region, Ontario, Canada, shall have jurisdiction to hear any dispute under these Terms and Conditions.

Notices: Any notices required or permitted to be given under the provision of a SOW shall be in writing and shall be sent by personal delivery or registered mail. Any notices to Treefrog shall be addressed to the attention of the CEO of Treefrog, and any notice to the Client shall be addressed to the attention of the Signing Authority of the Client, as identified on the SOW. No notice shall be effective unless it is properly delivered at the location and given in accordance with the foregoing provisions.

14.0 Surviving Sections, Waiver, Notices

The sections titled “Ownership,” “Confidential Information,” and “Indemnification” in these Terms and Conditions set forth independent covenants that survive the expiration or termination of a SOW and that remain in full force and effect.

The failure of either Party to these Terms and Conditions to enforce or to require strict compliance or performance by the other Party for any provisions of the SOW shall not constitute a failure of such provisions and shall not affect or impair the rights of the Parties to enforce these provisions of the SOW. In other words, failure by one Party to enforce one clause or part of the SOW does not render other parts of the SOW unenforceable.

These Terms & Conditions may be amended from time to time, at the discretion of Treefrog.

 

Last updated: January 4, 2022