A. Warranty.

Customers are eligible for labour warranty support for 30 days following the final completion of activities. Labour warranty does not extend to software or hardware defects which are covered by the warranty of another vendor. CREATIVE will provide installation support for patches and other fixes available at the time of the delivery of service under this warranty. CREATIVE is not responsible for data modification or changes which result from the proper use of the software upgrade utilities provided by the vendors.

B. Payment Terms

Customers shall make all payments according to the following terms.

• All invoices shall be paid within 5 business days.
• Customers have up to 5 business days to make objection to any invoice. Such objection must be communicated in writing via electronic means. Customers may withhold payment only on the portion of the invoice in dispute, and must release payment for the undisputed amount immediately.
• Customers who fail to make payment within 45 days shall have all projects put on temporary hold until payment is remitted and the account is once again in good standing (no invoices over 15 days)
• Mileage fees are over and above the hourly fees shown above.
• Scheduled visits which are cancelled with less than 48 hours notice will be subject to a cancellation charge equal to 2 hours service.
• Scheduled visits which are cancelled after the employee has left their office and is on route to the customer’s work site or has arrived at the work site are subject to the 4 hour minimum charge.
• All service calls on-site shall be assessed minimum charge of 4 hours - except where the analyst and customer agree to a lesser charge.
• Creative charges standard overtime premiums for work on weekends, holidays and outside of regular business hours (after 6 pm or before 8 am) unless agreed upon in writing in advance of the work being conducted.
• Creative charges customers who wish to have employees on-call during off hours 33% of the employee regular rate, to a maximum of 8 hours per day.

C. Subject to Change

CREATIVE may change these published rates and terms and conditions without notice.

D. Acceptance.

Issuance of a Purchase Order for the quoted software or service, or payment of an Invoice for the like marks your acceptance of the terms, conditions and legal provisions outlined in this document.

E. Account Standing.

Failure to allow warranty service in a timely manner is not an acceptable reason to withhold payment in any circumstance. Customers are obligated to contact CREATIVE regarding warranty issues within a reasonable period of time. CREATIVE provides guaranteed warranty support and will work with you in all cases to resolve problems; except where payment is withheld for an unreasonable time and you fail to provide feedback and support.

CREATIVE reserves the right to withhold warranty support on any account not in good standing. Accounts in good standing have no receivables aged more than 15 days.

F. Backups.

The customer is responsible for creating proper backups of their files before the start of the service. CREATIVE will make our best effort to also perform backups, but the customer must be sure they have backups or else inform CREATIVE that such backups do not exist. The customer must approve the backup state before CREATIVE can proceed with our service. It is the responsibility of the customer to inform CREATIVE if backups are not reliable or have not been competed.

G: Delivery:

CREATIVE reserves the right to defer delivery of small, non-critical items where such delivery would be cost prohibitive. CREATIVE shall in all cases complete delivery of these items within a reasonable time frame, and will keep the customer informed of these deferred items and the reasons. This deferral of delivery is sometimes necessary due to time constraints, excessive cost, or to ensure the proper operation of a component in a “less complicated” configuration before adding complexity. Invoicing and payment for services shall not be withheld for these deferred items unless the customer indicates this at the time of delivery of the main components of the service.

H: Incidental Charges:

Creative’s policy regarding incidental charges (ie: Phone calls, emails, faxes) and billing:

Creative will bill customers for incidental charges such as phone conversations, requests for emails or faxes that require less than 15 minutes only after verbally confirming such with the customer (ie: informing the customer that to continue the call or receive the email a charge will be assessed.) In almost all cases activities under 15 minutes are not billable.  Exceptions might occur when numerous short calls occur in a brief span of time.

Creative will use our discretion when billing customers for phone calls or other activities that exceed 15 minutes.  Our general policy is to inform the customer in writing or verbally if the situation is not clear.
 
Creative will assess charges to customers who ask Creative staff to perform activities which they could easily do themselves but prefer to pass to our staff.  Examples of this might include: Contacting Infor support, posting questions with Infor or Microsoft Forums on the customer’s behalf, performing research into technology features.

eg: “Could you find out if Crystal XI runs on a Windows 98 computer?” Would require research that will be billed for.  Simply asking “Do you know if Crystal XI runs on a Windows 98 computer?” would not be billed if the customer did not ask Creative to continue past the immediate answer.

eg: “Do you know if I can run Visual 6.5.3 on SQL 2008” would not be a billable question if asked and answered during a phone call.

eg: “Can you go over the process to convert a 6.5.3 database to 6.5.4” which results in a :30 phone call would be a billable activity.

eg: “Can you write a blurb for me to give my boss regarding why switching from Crystal reports to XXX reports would be a good idea” would be a case where we would inform you in writing or verbally that this was billable if we felt the blurb might require significant time to complete and that it was not a case of a “sales” activity.

Legal Provisions

A. Definitions.

“CREATIVE” means Creative Manufacturing Solutions Inc.

"Confidential Information" means any information concerning the business, properties, affairs or finances, or of any person, firm, corporation or other entity which either you or CREATIVE am under an obligation to keep confidential, including, without limitation, trade secrets, customer lists, business, studies and analyses and any and all proposals, notes, memoranda, reports, lists and records, whether written, printed or in digital format or otherwise, relating to any matter within the scope of my business or concerning any of dealings or affairs, including without limitation with respect to the Project, and shall include all Intellectual Property and any and all other types of information which is identified by either you or CREATIVE as confidential at the time of disclosure.

"Intellectual Property" means any and all intellectual property created or owned by me in any way related to the Project or any other work done pursuant to this Agreement, including, without limitation, all technical information, technical data, inventions, products, data, algorithms, design, methods, know-how, processes, copyrights, patents, trade secrets, software (including object code and source code), models, patterns, drawings, specifications, prototypes, discoveries, techniques systems, works of authorship, ideas, and concepts.

B. Limited Warranty.

CREATIVE warrants that the delivered services will perform the functions promised. If problems are detected after delivery that are caused by errors in the service delivery, CREATIVE will fix them at no charge if reported immediately and detected in the first 30 days after delivery of the service. CREATIVE shall have no liability with respect to problems caused by misapplication or changes in the way that customers use Visual Manufacturing™, another ERP system or the delivered service, accidents, abuse, or by patches or upgrades to the Visual Manufacturing™, the ERP or Operating System software or any other service or software licenced to a third party. If trivial problems occur, CREATIVE will make reasonable efforts to fix them. However, CREATIVE shall have no responsibility for trivial or intermittent bugs that are caused by the operating system, application programs or other companies' proprietary products. This remedy is your exclusive remedy and my entire liability and only warranty made with respect to the project. This limited warranty gives you specific legal rights, and you may have other rights which vary from jurisdiction to jurisdiction. CREATIVE is in no way responsible for the results of the correct application of the upgrade scripts, utilities or other tools applied to existing data of the customer. The customer is always required to maintain good backups of all data before CREATIVE performs work.

C. Limitation on Liability.

Other than as provided in the Limited Warranty section, and to the maximum extent permitted by applicable laws, projects and services are delivered "as is" without any warranty or condition of any kind, either express or implied, statutory or otherwise, including but not limited to the implied warranties or conditions of fitness for a particular purpose. Some jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you. CREATIVE shall in no event be liable to you or any other person for any direct, indirect, special, consequential or incidental damages (including without limitation, damages for loss of revenues or profits, business interruption, loss of business information and the like) arising out of the services delivered and the subsequent use of the deliverables, even if CREATIVE has been advised of the possibility of such damage or claim, or it is foreseeable. In no event shall my maximum total liability to you exceed the Main Cost that you paid for the Project. The limitations in this section apply whether or not the alleged breach or default is a breach of a fundamental term or condition.

D. Indemnification.

You agree at all times to indemnify CREATIVE and hold CREATIVE harmless, together with any of our agents, employees and representatives, of and from any and all actions, causes of action, liabilities, claims, demands, suits, debts, dues, damages, losses, injuries, expenses or otherwise which may be brought against me for any damage suffered by any person, firm or corporation arising from or in any way connected with the Project or the provision of any services provided by me pursuant to this Agreement.

E. Force Majeure.

Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.

F. Miscellaneous.

Acknowledgment.

You acknowledge having read this Agreement and understood it, and hereby agree to be bound by its terms and conditions. You also agree that this Agreement is the complete and exclusive agreement between us, and supersedes all prior agreements, representations and any other communications, oral or written, between us relating to the subject matter of this Agreement. This Agreement may only be amended by written agreement between us. You agree that no use of trade or other regular practice or method of dealing shall be used to modify or alter in any way the terms of this Agreement.

Governing Law.

This Agreement is governed by the laws of the Province of Ontario, Canada, and you agree to bring any claim or action arising out of this Agreement in the courts of the Province of Ontario, regardless of conflicts of laws principles.

Severability.

If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, that provision will be modified to the extent necessary to render it enforceable or will be severed from this Agreement, and all other provisions of this Agreement shall remain in full force and effect.

Successors.

This Agreement will be binding upon and inure to the benefit of each of use, and our respective heirs, executors, administrators, successors and assigns.

Counterpart and Facsimile Transmission.

This Agreement may be executed in several counterparts each of which when executed shall be deemed to be an original, and which shall each constitute one and the same instrument, deemed to be dated the date hereof. This Agreement may be delivered by facsimile or other electronic means of transmission, and upon receipt such transmission shall be deemed delivery of an original.