These terms and conditions of product and service (this "Agreement") are incorporated by reference into, and forms a part of, such Product and Services Agreement entered into by and between TRACESAFE INC. ("Provider") and Customer (as such term is defined in such Product and Services Agreement) and includes: (i) these master terms contained herein with respect to core legal and commercial terms; and (ii) Provider's data processing agreement with respect to how data is processed. This Agreement provides material terms and conditions applicable to all purchases of products from, and provision of services by, Provider. In the event of a conflict between the terms of this Agreement and the terms contained in the Product and Services Agreement, the terms contained in the Product and Services Agreement shall prevail. In the absence of any other acceptance by the Customer of these terms and conditions, delivery of any goods or the commencement of any Services by Provider pursuant to the Product and Service Agreement shall constitute acceptance of this Agreement.
1. Nature of Base Agreement and Services
1.1 Base Agreement. This Agreement shall act as a base agreement under which the Parties may enter into multiple specific transactions by executing a Service Order (as defined below), a form of which has been made available to Customer. This Agreement, including the Product and Services Agreement and all executed Service Orders, forms an integrated agreement between the Parties and sets out the terms and conditions pursuant to which Provider agrees to provide and Customer agrees to purchase the Services (as defined below) related to the supply, installation, operation and maintenance of proprietary software and hardware, cloud solutions and other related technical solutions to be used for the purpose of running contact tracing and quarantine management functions (collectively, the "TraceSafe Platform").
1.2 Service Description. Provider shall do all such things as are reasonably necessary for the design, selection, installation, configuration, management, operation, security, maintenance and support of the TraceSafe Platform (the "Services"). The Services include, but are not necessarily limited to, those services described in the Product and Services Agreement or applicable Service Order, as well as any additional services reasonably required for Customer’s use of the Services, even if not specifically listed.
1.3 Service Orders. The Services will be ordered through the issuance of service orders which have been duly executed by the authorized representative of each Party (each, a "Service Order"). Each Service Order will detail the Services to be provided, timelines, location(s), the fees to be paid therefor, and such other relevant terms as the Parties may agree. Service Orders may be changed only upon the written agreement of both Parties. In the event of a conflict between the terms of this Agreement and the terms contained in any signed Service Order, the terms contained in the Service Order shall prevail only in respect of that order. Upon execution by both Parties, a Service Order shall be deemed to be a valid and binding part of this Agreement.
1.4 Service Levels. Provider shall provide the Services in accordance with the Service descriptions set out in the Product and Services Agreement or applicable Service Order.
1.5 Suppliers and Subcontractors. Customer acknowledges and agrees that Provider may procure products and services from, and subcontract the provision of the Services to, duly qualified third-party providers and subcontractors, provided that Provider shall remain wholly liable to Customer for the acts or omissions of the third-party providers and subcontractors subject to any limitations of liability set out in this Agreement.
1.6 Subsidiaries. Any of Customer’s Subsidiaries (as defined below) may purchase Services under this Agreement. Each Subsidiary shall be liable to Provider for any breach by it of the terms of this Agreement, including any Service Order executed by the Subsidiary. For the purposes of a Subsidiary's Service Order, references to "Customer" in this Agreement, the Product and Services Agreement and the Service Order shall be deemed to be references to the Subsidiary executing the Service Order. Each Service Order executed between Provider and a Subsidiary willcreate a binding legal agreement between Provider and the Subsidiary, and will be enforceable as such. Subject to the limits on aggregate liability contained herein, Customer shall be liable for compliance by its Subsidiaries with the terms of this Agreement. For the purposes of this Agreement, "Subsidiary" means any entity that is Controlled by Customer, and "Control" (including its correlative form "Controlled") means the power to direct the management and policies of an entity, directly or indirectly, whether through the ownership of voting securities, by contract, orotherwise.
1.7 Time is of the Essence. Time is of the essence with respect to the performance of all Services to be performed by the Provider under this Agreement.
This Agreement will commence with effect from the effective date of the Product and Services Agreement, and will continue until terminated in accordance with its terms ("Term"). The term of each Service Order commences on the Service commencement date specified in the Service Order and continues for the term set out in the Service Order. Certain Services may be provided on a monthly, weekly, daily or hourly basis, as more fully described in the applicable Service Order.
3. Equipment and Software
3.1 Customer Equipment. Provider shall select, supply, sell and deliver to Customer the specialized hardware, as specified in the Product and Services Agreement and any applicable Service Order, required to run the TraceSafe Platform ("Customer Equipment"). The Customer Equipment (but for greater certainty, not any Licensed Software) shall be owned solely by Customer.
3.2 Other Materials. Provider shall be responsible for providing all other equipment and materials that are required for the performance of the Services ("Provider Materials"). Customer is granted a non-transferable, fully paid-up right and license to use the Provider Materials during the Term, solely in conjunction with Customer’s provision of the Services. Customer may not transfer this license to any third party, without Provider’s prior written permission. Any modifications made by Provider to the Provider Materials in connection with the Services shall also be considered Provider’s property, and shall be deemed an indivisible part of the Provider Materials.
3.3 Monitoring and Operating System Software. Provider will manage the TraceSafe Platform through the use of its proprietary software and cloud management solutions (the "Licensed Software"). Provider may load and operate the Licensed Software on the Customer Equipment solely as required in connection with Provider’s provision of the Services. Provider grants to Customer a non-exclusive, royalty-free, fully paid up right and license to use the Licensed Software on the Customer Equipment solely in connection with Customer’s use of the Services during the Term. Subject to the limited rights granted to Customer under this Agreement, all rights, title and interest in and to the Licensed Software shall remain vested in the Provider.
3.4 Software as a Service. Provider grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right during the Term to permit certain authorized users identified in accordance with a Service Order ("Authorized Users") to access and use the Licensed Software as described in a Service Order as part of the Services, provided that such access and use is (a) only for Customer's internal business purposes or Customer's end client's personal purposes; and (b) in accordance with the applicable end-user documentation that Provider provides to end-user customers for use of the Licensed Software (the "Documentation"). No other right or license of any kind is granted by Provider to Customer hereunder with respect to the Licensed Software. Without limitation of the generality of the foregoing, the Parties acknowledge that: (i) Customer and Customer's end clients may use the Licensed Software only as a service and only as such software is hosted on equipment operated by or for Customer and Customer's end clients; and (ii) Customer and Customer's end clients shall not (and shall have no right to) download or make copies of the Licensed Software (other than transitory copies of portions of the Licensed Software that are made as an essential step in accessing and using the Licensed Software and that exist non-persistently in computer memory only for so long as the Licensed Software is being actively used). Customer hereby acknowledges and agrees that Customer is responsible for the compliance by each of the Authorized Users with the terms of this Section 3.
3.5 Open Source Software/Materials. Provider will be responsible for selecting, installing and operating any third-party software and materials required for the operation of the TraceSafe Platform.
4. Delivery of Customer Equipment and Performance of Services
4.1 Final Sale and Delivery. All sales of goods hereunder are final and no refund is available other than as expressly set forth in this Agreement. The Customer Equipment will be delivered within a reasonable time after receipt of a duly executed Service Order. Provider shall deliver the Customer Equipment to the address specified in the Service Order during Customer's normal business hours, or such other address as provided by Customer in writing. Provider shall pack all Customer Equipment for shipment in a manner reasonably sufficient to help prevent the Customer Equipment from being delivered in damaged condition. Provider shall make delivery of the Customer Equipment in accordance with the terms specified in this Agreement or as modified in any Service Order, as applicable.
4.2 Non-Delivery. The quantity of any installment of Customer Equipment as recorded by Provider on dispatch from Provider's place of business shall be conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary. Provider shall not be liable for any non-delivery of Customer Equipment unless Customer gives written notice to Provider of the non-delivery within thirty (30) days of the date when the Customer Equipment should have been received by Customer in accordance with the applicable Service Order. Any liability of Provider for non-delivery of the Customer Equipment shall be limited to replacing the Customer Equipment within a reasonable time or, if Customer so directs at its sole and absolute discretion, acting reasonably, adjusting the Service Order in respect of such Customer Equipment to reflect the actual quantity delivered to Customer. Customer acknowledges and agrees that the remedies set forth in this Section 4 are Customer's exclusive remedies for any non-delivery of Customer Equipment.
4.3 Provision of Services. Customer shall: (i) cooperate with Provider in all matters relating to the Services and provide such access to Customer's premises, and such office accommodation and other facilities as may reasonably be requested by Provider, for the purposes of performing the Services; (ii) respond promptly to any request by Provider to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Provider to perform the Services in accordance with the requirements of this Agreement and any Service Order; (iii) provide such customer materials or information as Provider may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services; and (v) use, and will contract end-user customers to use, the Customer Equipment, TraceSafe Platform and Services solely for their intended purpose and only in the ordinary course of its operations and not for resale.
4.4 Shipping. Unless otherwise expressly agreed in the Product and Services Agreement or a Service Order, Customer shall pay all transportation, customs, duties and other governmental charges, if any, relating to the export, import and sale of the Customer Equipment, and shall have all responsibility for storing and clearing the Customer Equipment through all customs requirements. Provider shall ship to the destination designated in the applicable Service Order and according to routing instructions given by Customer to Provider.
5. Compensation, Invoicing and Payment
5.1 Compensation. The fee ("Service Fee") to be paid by Customer to Provider for all included Services ("Included Services") shall be as set out in the applicable Service Order. Service Fees shall be payable within thirty (30) days from the date the invoice is received by Customer unless otherwise specified in the Service Order, and will be invoiced monthly. Fees for any additional Services that are not Included Services ("Additional Services") will be invoiced separately, at agreed rates.
5.2 Invoicing. All invoices must: (a) be in accordance with the rate schedule as set out in the Product and Services Agreement or otherwise agreed to by the Parties in writing from time to time (the "Rate Schedule"); (b) refer to the applicable Service Order number; and (c) include sufficient line item detail and supporting documentations for Customer to reasonably verify the basis of the charges, including quantities and pricing. Unless otherwise agreed, Additional Services will be invoiced following the end of the calendar month during which the Additional Services were provided.
5.3 Expenses. Unless otherwise expressly agreed in a Service Order, fees for Services include all Provider expenses incurred in connection with the provision of the Services including, but not limited to, all Provider Materials, software license fees, staff travel time, and expenses for accommodation and subsistence.
5.4 Taxes. Customer shall be responsible for, and shall promptly pay, all applicable taxes and duties (including but not limited to sales, use and withholding taxes) associated with this Agreement, other than taxes based on Provider’s income. In the event that Provider is required to collect any tax for which Customer is responsible, Customer shall pay the amount of such tax directly to Provider. GST or HST, if applicable, is not included in the rates for Services and Customer Hardware set out in the Rate Schedule and will be added to individual Service Orders, as applicable.
5.5 Dispute. In the event of a dispute or question regarding any invoice submitted by Provider: (a) all amounts not disputed or in question shall be promptly paid as and when required by this section; (b) Customer shall promptly transmit to Provider an explanation of the dispute or question; (c) Customer and Provider shall immediately seek to resolve the dispute or question; and (d) payment of any remaining amount shall be made within thirty (30) days of when the dispute or question is resolved according to Section 14.5 of this Agreement. Provider may charge and accrue interest on any past due amounts (other than disputed amounts or amounts in question as described herein) at the lesser of 1% per month or the maximum rate permitted by law. During the term of the dispute, in no event shall Provider stop or suspend the Services as long as Customer is paying undisputed invoice amounts in accordance with this Section 5.
5.6 Currency. Unless otherwise expressly stated, all references to monetary amounts contained in this Agreement, including any Service Order, or any reports, invoices, or other documents issued pursuant to or in connection with this Agreement or a Service Order, shall be deemed to be references to United States dollars.
6. Intellectual Property and Proprietary Rights
6.1 Provider Intellectual Property. Customer acknowledges that Provider has developed and uses valuable technical and non-technical information, trade secrets, know-how and the like in the Licensed Software, Customer Equipment, Tracesafe Platform, Provider Materials, Documentation and the provision of the Services. Customer agrees that, except for the limited rights granted to Customer under this Agreement or as otherwise agreed in writing, all patents, petty patents, trade and service marks, design rights, copyrights, know-how, trade secrets and other intellectual and industrial property rights (collectively, "Intellectual Property Rights") in and to the Services and the Licensed Software are and shall remain the property of Provider.
6.2 Trademarks. Each Party recognizes and acknowledges the great value of the goodwill associated with the name and trademarks of the other Party, and the identification of the proprietary Party’s products and services therewith. Each Party agrees that it obtains no rights, title or interest in or to any of the trademarks, trade names, logos, service marks or other markings belonging to the other Party or its affiliates. Each Party agrees not to attack the validity of any of the other Party’s trademarks, or other Intellectual Property Rights or (save as required by law or process of law) to assist any other party in so doing, during the Term or at any time thereafter.
6.3 Provider's Technology and Data. Except as otherwise provided herein, Provider shall exclusively own all right, title, and interest in and to the Licensed Software, Customer Equipment, TraceSafe Platform, Provider Materials, all Documentation and the Services ("Company's Technology and Data"), including all Intellectual Property Rights therein, and any enhancements, updates, improvements or other modifications to any of Company's Technology and Data, whether developed before, during or after performance of the Services hereunder and whether or not developed in connection with the Services. Customer shall not take any action to jeopardize, encumber, limit, or interfere in any manner with Provider's or its licensors' ownership of and rights with respect to the Company's Technology and Data. In addition to the foregoing, Customer shall promptly notify Provider of any known infringement or misappropriation of Provider's proprietary rights of which Customer becomes aware. Customer shall have only those rights in and to the Company's Technology and Data as are expressly granted to it under this Agreement, and no other rights shall be implied.
6.4 Pre-existing Materials. As between the Parties, each Party will be and remain the sole and exclusive owner of its concepts, ideas, studies, artwork, proofs, text, software, data, designs, processes, techniques, know-how, documents, inventions, information, drawings, program, campaigns, trademarks, service marks, slogans, written materials, photographs, graphic materials, audio-visual works, music, transcriptions, and other materials owned or developed by or on behalf of such party (including, for purposes of this Agreement, any materials belonging to or provided by a Party's agencies, contractors, subcontractors or partners to the other Party) before the Effective Date, and all Intellectual Property Rights therein ("Pre-existing Materials"). Neither Party shall have any interest in, or claim to, the other Party's Pre-existing Materials, except as expressly granted in this Agreement.
7. Nature of Relationship
7.1 Independent Contractor. This Agreement is made with the express understanding that Provider is an independent contractor. This Agreement is a contractual relationship, and nothing contained herein shall be construed or applied to create the relationship of employer and employee or principal and agent or master and servant between Customer and Provider or any of Provider's affiliates, their employees or other personnel. Neither Provider, its affiliates nor any of their employees or other personnel are authorized to act or appear to act as agents or representatives of Customer, whether in performing the Services or otherwise. Any provisions of this Agreement or any Service Order which may appear to give Customer the right to direct Provider as to details of performing any Services, or to exercise a measure of control over Provider's performance of the Services, shall be interpreted to mean that Provider will follow the instructions of Customer with respect to the results of the Services achieved only and not in the means whereby the Services are to be accomplished. Provider shall have complete and authoritative control as to the details of performing the Services. All Services contemplated hereunder, however, shall meet the approval of Customer and shall be subject to the general right of inspection. Nothing in this Agreement shall be construed or interpreted to create a partnership or joint venture between Customer and Provider.
8. Representations and Warranties
8.1 Equipment Warranty. Except as otherwise agreed to by Provider in writing, Customer Equipment is warranted, to the original Customer only, for use solely by Customer or direct affiliate, to be in compliance with all specifications for Customer Equipment set forth in this Agreement and all applicable Service Orders for a period of ninety (90) days from the date of delivery. Provider does not warrant any products against defects caused by misuse, abnormal operating conditions, alterations or damage caused by events beyond the control of Provider. Provider shall not be liable for product defects caused by or resulting from any inaccuracies in any drawing, description or specification supplied by the Customer. Upon Customer's written request during the warranty period, Provider, at its choice, will repair or replace defective products within a reasonable time. The original term of warranty applies, without extension, for repaired or replacement products. All defective product shall be sent to Provider freight prepaid by Customer in packaging appropriate to prevent damage in transit. This limited product warranty does not apply to periodic calibration or minor maintenance as described in any Documentation.
8.2 Services Warranty. Provider represents and warrants to Customer that, during the Term, (i) the Services will conform to the Service descriptions; and (ii) all Services will be performed in a professional and workmanlike manner in accordance with the highest industry standards.
8.3 Mutual Warranties. Each Party represents and warrants that: (i) it is a corporate entity in good standing in its jurisdiction of incorporation; (ii) it has obtained all necessary approvals, consents and authorizations to enter into, and to perform its obligations under, this Agreement and each Service Order; (iii) the person executing this Agreement and each Service Order on its behalf has express authority to do so and to bind the Party; (iv) it is not under any current obligation or restriction, nor will it knowingly assume any such obligation or restriction, that does or could interfere with the performance of its obligations under this Agreement; and (v) the execution, delivery, and performance of this Agreement or any Service Order does not violate any provision of any bylaw, charter, regulation, or any other governing authority of the Party, or any other agreement to which it is a party, and its obligations under this Agreement, including each Service Order, are valid and binding obligations of that Party.
8.4 Additional Provider Warranties. During the Term, Provider further represents and warrants to Customer that: (i) it and its personnel possess the necessary skills and experience to perform Provider’s obligations under this Agreement and each Service Order; (ii) it will comply with all applicable requirements, laws, rules and regulations in connection with the delivery of the Services and Customer Equipment and the exercise of its rights and the performance of its other obligations; (iii) this Agreement and each Service Order, when executed, are legal, valid and binding obligations of Provider; and (iv) Provider is the owner or authorized licensee of the Licensed Software and the Provider Materials, and possesses all necessary rights to perform the Services and to grant Customer the rights and licenses granted under this Agreement.
8.5 Customer Equipment Returns.
8.5.1 For Warranty.
(i) If Customer reasonably suspects a Customer Equipment item contains a defect or error covered under the limited equipment warranty contained in Section 8.1 hereof, Customer may submit a request (an "RMA Request") to Provider for a return merchandise authorization ("RMA").
(ii) RMA Requests must be in writing and contain the following information: (i) nature of the defect or error; (ii) serial number of applicable Customer Equipment; (iii) contact information; (iv) end user company name; (v) destination shipping information for replacement Customer Equipment, if applicable; (vi) Customer representative name, if applicable; and (vii) Customer representative contact, if applicable.
(iii) Upon receipt of an RMA Request, Provider shall virtually inspect such Customer Equipment to confirm presence of a defect or error and, if confirmed, shall grant an RMA, assign an RMA number to the RMA Request and authorize shipment of a replacement Customer Equipment. For the purposes of this Section 8.5.1 (iii), virtual inspection by Provider may be done by picture, video or live webcast (via Zoom or another acceptable live webcast platform).
(iv) An RMA for reusable and non-reusable Customer Equipment is valid for ninety (90) days and twelve (12) days, respectively, after issuance.
(v) Provider, at its option, may issue a credit in place of replacement. Such credit shall only be issued for Customer Equipment determined by Provider to be defective and covered under the limited warranty contained in Section 8.1 hereof. Provider shall reasonably assist Customer in sourcing any replacement Customer Equipment where it provides a credit instead of a replacement.
8.5.2 Customer is responsible for return shipping of defective Customer Equipment and associated charges. Customer shall clearly indicate the RMA number on the packaging of any return of Customer Equipment and ensure all return parcels contain all Customer Equipment parts and all RMA documentation. Customer Equipment returned to Provider for any reason must have a Provider-supplied RMA number. Customer Equipment returned to Provider for credit or warranty claim must include a Provider invoice number. Provider may refuse any return that does not meet the requirements of this Section 8.5.2. Provider is not responsible for lost or damaged parcels.
8.5.3 Any return of Customer Equipment made by Customer in connection with (i) Customer error; (ii) an amended Service Order; or (iii) subject to Section 13.6.2 hereof, the termination of a Service Order for convenience pursuant to Section 13.4 hereof, shall be subject to a 25% restocking fee.
8.5.4 Customer shall submit a new Service Order with any return that is accompanied by any request to replace the returned Customer Equipment, including an RMA Request.
9. Confidential Information
9.1 Confidential Information. Each Party ("Recipient") agrees that all non-public information furnished to it by the other Party ("Discloser"), including software, pricing, financial information, business strategies, design information, methodologies, specifications, and other commercial and technical information to which it has access under this Agreement, are deemed confidential and proprietary information or trade secrets (collectively, "Confidential Information") of the Discloser and shall remain the sole and exclusive property of the Discloser. Recipient shall treat the Confidential Information in a confidential manner using the same degree of care as it uses to protect its own confidential information of a like nature, but no less than a reasonable degree of care given the sensitivity of the information and the circumstances of its disclosure. Recipient may use and copy the Discloser’s Confidential Information only in direct furtherance of the purposes of this Agreement. Except to the extent necessary in connection with the exercise of its rights or the performance of its obligations under this Agreement, neither Party may directly or indirectly disclose the Discloser’s Confidential Information other than to its employees, advisors, lenders and investors on a "need to know" basis, but only after they have been advised of the information’s confidential and proprietary nature, and have agreed to protect same on terms no less onerous than the terms of this Section 9.
9.2 Terms and Conditions. The Parties expressly understand and agree that the terms of this Agreement, including all Service Orders, are Confidential Information for the purposes of this Section 9.
9.3 Exceptions. Notwithstanding anything to the contrary contained herein, a Recipient has no obligation to preserve the confidentiality of any information that is: (i) previously known, or received rightfully by Recipient without any obligation to keep it confidential; (ii) distributed to third parties by Discloser without restriction; (iii) publicly available other than by unauthorized disclosure by Recipient; (iv) independently developed by Recipient as evidenced by its records; or (v) disclosed to a governmental authority lawfully demanding disclosure of the Confidential Information, provided that (unless prohibited) Recipient provides sufficient prior written notice of the demand to allow Discloser a reasonable opportunity to object to the scope or terms of the governmental demand or obtain a protective order, and if disclosure ultimately is required, Recipient discloses only the Confidential Information specifically required to be disclosed and only to the extent it is compelled to do so, and Recipient otherwise continues to maintain the confidentiality of Discloser’s other Confidential Information after the required disclosure.
9.4 Securities Law Matters. Each Receiving Party acknowledges that access to the Confidential Information of the Discloser may provide the Recipient with material information concerning the Discloser which has not been publicly disclosed. Accordingly, the Recipient may be subject to applicable securities laws that may restrict its ability to disclose such information to others or to purchase or sell securities. Each Party as a Recipient acknowledges and agrees that it shall fully comply with such laws.
9.5 Survival. The foregoing obligations regarding Confidential Information shall remain in full force and effect, notwithstanding any termination of this Agreement or of a Service Order for any reason.
10. Audit Rights
10.1 Books and Records. Provider shall maintain complete and accurate records of its activities related to the performance of its obligations under this Agreement ("Records"), and shall retain such Records for a minimum period of three (3) years, or such longer period as may be required by applicable law.
10.2 Customer Audit Rights. Customer shall have the right, upon not less than five (5) Business Days’ written notice to Provider, to audit the Records in order to verify Provider’s compliance with the terms of this Agreement. Audits may be conducted by Customer personnel, or by a reputable third-party auditor reasonably agreeable to both Parties. Customer’s audit right will be limited to once per calendar year unless a previous audit revealed a material discrepancy, in which case Customer will be entitled to conduct more frequent audits as needed in order to confirm that the discrepancy has been rectified to Customer’s reasonable satisfaction. Audits will be conducted at a mutually convenient time to be agreed by the Parties, and in such a manner as to minimize disruption to Provider’s business operations. All Customer personnel and contractors obtaining access to Provider’s premises must be accompanied by Provider Personnel (as defined below) and be bound by obligations of confidentiality which are no less onerous than those set out in Section 9, and shall comply with all such reasonable security measures as Provider (as applicable) may require. For the purposes of this Section 10.2, "Business Day" means a day other than a Saturday, Sunday or statutory holiday in the jurisdiction in which the venue to be audited is located.
10.3 Confidentiality. All Records, and the conduct and results of any audit, will be "Confidential Information" for the purposes of this Agreement.
11.1 Provider Indemnity. Provider agrees to indemnify and hold harmless Customer, its affiliates, Subsidiaries, successors, and assigns, and their respective officers, employees and directors (each, a "Customer Indemnitee") from and against all suits at law or in equity and from all liabilities, damages, costs, losses, and expenses (including legal and other professional fees) incurred by a Customer Indemnitee resulting from: (i) any breach by Provider, including its employees, agents and subcontractors ("Provider Personnel"), of its obligations under this Agreement, or under any agreement that Provider may have with the owner or licensor of any third-party materials; (ii) other claims by third parties, including claims for death, personal injury, or damage to property, to the extent caused directly or indirectly by any Provider Personnel; or (iii) Provider having made inaccurate or unauthorized warranties, representations or statements, or otherwise acting beyond the scope of its authority as set out in this Agreement. Provider further agrees to defend or settle, at its sole expense, any third-party actions brought against any Customer Indemnitee resulting from (A) any Provider Personnel’s acts or omissions, or (B) a claim that the Services, the Licensed Software, the Customer Equipment (in the state delivered by the Provider) or any Provider trademarks or other intellectual property infringe a third party’s intellectual property rights. Provider will hold the Customer Indemnitees harmless from all resulting losses, costs or damages; provided, however, that Provider will not agree to any settlement or consent judgment that imposes any obligations on a Customer Indemnitee without Customer’s express prior consent.
11.2 Customer Indemnity. Customer agrees to indemnify and hold harmless Provider, its successors and assigns, and their respective officers, employees and directors (each a "Provider Indemnitee") from and against all suits at law or in equity and from all liabilities, damages, costs, losses, and expenses (including legal and other professional fees) incurred by a Provider Indemnitee resulting from any breach by Customer, including its employees, agents and subcontractors ("Customer Personnel") of its obligations under this Agreement. Customer further agrees to defend or settle, at its sole expense, any third-party actions brought against any Provider Indemnitee resulting from anyCustomer Personnel’s acts or omissions. Customer will hold the Provider Indemnitees harmless from all resulting losses, costs or damages; provided, however, that Customer will not agree to any settlement or consent judgment that imposes any obligations on a Provider Indemnitee without Provider’s express prior consent.
12. Limitation of Liability
12.1 Exclusion of Damages. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 12.3, NOTWITHSTANDING ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT, INCLUDING IN ANY SERVICE ORDER, IN NO EVENT SHALL EITHER PARTY OR ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR AGENTS BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR AGGRAVATED DAMAGES OF ANY KIND WHATSOEVER, HOWSOEVER CAUSED AND REGARDLESS OF THE FORM OR CAUSE OF ACTION (INCLUDING IN TORT, CONTRACT, INDEMNIFICATION, FUNDAMENTAL BREACH, GROSS NEGLIGENCE OR OTHERWISE), EVEN IF SUCH DAMAGES ARE FORESEEABLE OR IF CUSTOMER KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 Limitation on Liability. Except as provided in Section 12.3, in no event shall the aggregate liability of either Party, its Subsidiaries, and their respective directors, officers, employees, contractors and agents to the other, for all losses, costs and damages arising under or in connection with this Agreement, including any Service Order, exceed the lesser of (i) actual direct damages; and (ii) the total amount of Service Fees paid by Customer to Provider under the relevant Service Order during the preceding 12 month period.
12.3 Exclusions. The limitations set forth in this Section 12 shall not apply in the case of loss, costs or damage resulting from gross negligence, intentional misconduct, the Parties’ indemnity obligations relating to intellectual property infringement or Confidential Information, personal injury or death, fraud or other criminal activity.
13.1 Agreement. Unless otherwise expressly agreed by the Parties, this Agreement shall commence on the Effective Date and continue for an initial period of two (2) years ("Initial Term"). Customer shall have the right to renew this Agreement on the basis of mutually agreed upon financial terms for a further period of 12 months, commencing on the date that the Initial Term expires by giving no less than 90 days written notice prior to the end of the Initial Term.
13.2 For Convenience. Customer may terminate a Service Order for convenience at any time upon not less than 30 days prior written notice to Provider. Upon termination for convenience in accordance with this Section 13.2, Customer shall pay a termination fee equal the remaining monthly Services for the Service Order ("Termination Fee").
13.3 Right of Termination. This Agreement or any Service Order may be terminated by either Party upon written notice to the other Party ("Defaulting Party") if:
(i) Defaulting Party commits a material breach of any term of the Agreement which (in the case of a breach capable of being remedied) is not remedied within thirty (30) calendar days of receipt of a written request to do so by the non-breaching Party;
(ii) Defaulting Party (a) makes a general assignment for the benefit of its creditors; (b) files an application for a bankruptcy order, or an application for a bankruptcy order is made in respect of such party; (c) applies for or acquiesces in the appointment of any receiver, trustee or similar officer to liquidate or conserve its business or any substantial part of its assets; or (d) commences under the laws of any jurisdiction any proceeding for relief under the Bankruptcy and Insolvency Act (R.S.C, 1985, c. B-3) or successor legislation, or corresponding legislation in applicable foreign jurisdictions, involving its insolvency, reorganization, adjustment of debt, dissolution, liquidation or other similar proceedings for the release of financially distressed debtors; or
(iii) Defaulting Party ceases to carry on business in the normal course, other than in the context of a solventreorganization.
13.4 Effect of Termination.
13.4.1 General. Upon the termination of this Agreement or a Service Order for any reason, all outstanding and undisputed amounts owing pursuant to a terminated Service Order will become due and payable. The terms and conditions of this Agreement will apply to any Services delivered by Provider in accordance with the terms of this Agreement after the termination of the relevant Service Order, although the delivery of the Services will not in any way be construed as an agreement by either Party to renew this Agreement or the Service Order for a further term. The termination of a Service Order will be without prejudice to the accrued rights and liabilities of either Party and shall not automatically terminate any other Service Orders in effect under this Agreement.
13.4.2 Survival. All provisions which are expressly stated to survive or which by their nature should reasonably survive the termination or expiry of this Agreement or a Service Order for any reason, shall so survive, including Sections 6, 7, 9, 10, 11, 12, 13.4, 14.1 and 14.14 of this Agreement.
14. Miscellaneous Provisions
14.1 Governing Law; Venue. This Agreement, including each Service Order, shall be governed by and construed in accordance with the laws of the Province of British Columbia, and the federal laws of Canada applicable therein, but without regard to conflict of laws provisions. Except as provided in Section 14.2 (Injunctive Relief), the courts of the Province of British Columbia sitting in the City of Vancouver shall have exclusive jurisdiction over any disputes arising hereunder, and Provider expressly waives (i) any objection to jurisdiction or venue, any (ii) any defense claiming lack of jurisdiction or improper venue, in any action brought in such courts. To the extent to which it would otherwise apply, the Parties hereby expressly exclude the application of the United Nations Convention on the International Sale of Goods to this Agreement.
14.2 Injunctive Relief. The Parties acknowledge that a threatened or actual breach of Section 9 (Confidential Information), or a Party’s Intellectual Property Rights, will result in immediate, irreparable harm, and injunctive or other equitable relief may be applied for by the non-breaching party from any court having competent jurisdiction.
14.3 Assignment. Provider acknowledges that it has been selected by Customer to provide the Services on the basis of its particular skills and expertise, and agrees that it may not, directly or indirectly, assign this Agreement or any Service Order, or sell, assign, sub-licence, pledge, delegate, transfer or otherwise dispose of any of its rights or obligations under this Agreement or a Service Order, without the Customer’s prior written consent, except for an assignment by Provider to a subsidiary or affiliate of Provider under common control. All covenants, representations, warranties and agreements of the Parties contained in this Agreement will be binding upon, and enure to the benefit of, the Parties and their respective successors and permitted assigns.
14.4 Representatives. Each Party shall appoint a representative (each, a "Representative") who will be that Party’s primary point of contact for all matters arising under or in connection with this Agreement. Without limitation, each Party’s Representative shall (i) have authority to make day- to-day decisions on behalf of the Party; (ii) act as that Party’s primary representative for the purpose of resolving any disputes; and (iii) provide all such reasonable assistance as the other Party may require for the creation and dissemination of notices, reports, policies and procedures. Each Party shall notify the other of the name and contact details of its Representative within ten (10) Business Days of the Effective Date. A Party may change its Representative at any time during the Term upon written notice to the other Party.
14.5 Dispute Resolution. The Parties shall endeavor to resolve amicably any dispute in the ordinary course of business between the Parties’ Representatives. If the Parties' Representatives are unable to resolve the dispute in the ordinary course of business, then the dispute shall be referred to the Party’s senior management for resolution. If the Parties’ senior management cannot resolve the dispute within thirty (30) days of a Party’s notice to the other Party that such dispute should be taken to the Parties’ senior management, then either Party may initiate litigation. Pending resolution of any Dispute, under this Section 14.5, Provider and Customer shall proceed with the performance of its undisputed obligations consistent with its respective position in the dispute, including but not limited to payment of undisputed amounts.
14.6 Force Majeure. Neither Party will be liable for any loss, damage or delay resulting from any event beyond such Party’s reasonable control ("Force Majeure"), and delivery and performance dates will be extended to the extent of any such delays. "Force Majeure" includes, without limitation, acts of God, terrorist attack, acts of war, blockade,public riot, civil disturbance or unrest, lightning, fire, storm, flood, hurricane, earthquake, tsunami, tornado, explosion, epidemic, pandemic or governmental restraint. For greater certainty, Force Majeure does not include the acts or omissions of a Party’s suppliers, licensors, subcontractors, employees or agents. Upon the occurrence of a Force Majeure event, the Party claiming Force Majeure will promptly provide the other Party with written notice of the event and the estimated period of delay. The Party claiming Force Majeure will have the burden of establishing that a Force Majeure event has delayed delivery or performance, and will take all such actions as may be necessary to avoid or minimize the impact of any delay. If a Force Majeure event results in a delay of more than forty-five (45) calendar days in a single calendar year, in aggregate, either Party will have the right to terminate the affected Service Order by giving notice to the other in writing.
14.7 Amendments. Neither this Agreement, the Product and Services Agreement nor an individual Service Order may be amended or modified except in writing signed by the authorized representatives of both Parties. No course of dealing or usage of trade by or between the Parties shall be deemed to effect any such amendment or modification.
14.8 Publicity. Subject to Section 6 hereof, Provider may identify Customer as a user of the Services in its business deals; press releases; marketing materials; electronic, printed, and broadcast advertising; newsletters; mailings; tradeshows; other promotional materials; on Provider website; or any other third-party website where Provider or its designated agents may promote the Services. Customer grants Provider and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
14.9 Disclosure. For greater certainty, and subject to Section 9.4 hereof, neither Party will make any other disclosure about the other Party or the other Party’s business generally, without the other’s prior written consent, except to the extent that such Party is required to make any public disclosure or filing with respect to the subject matter of this Agreement by applicable law.
14.10 Severability. If one or more provisions of this Agreement is held to be unenforceable under applicable law: (i) the unenforceable portion will not affect any other provision of this Agreement; (ii) the Agreement will be construed as if the unenforceable provision was not present; and (iii) the Parties will negotiate in good faith to replace the unenforceable provision with an enforceable provision with effect nearest to that of the provision being replaced.
14.11 No Waiver. Failure by either Party to insist upon the performance of any term, covenant, or condition in this Agreement, or to exercise any rights under this Agreement, will not be construed as a waiver or relinquishment of the future performance of any such term, covenant, or condition, or the future exercise of any such right, and the obligation of each Party with respect to such future performance will continue in full force and effect.
14.12 Notices. Any notice required to be sent or given to Provider or Customer will be sent by personal delivery, confirmed facsimile or email, or reputable international courier service, return receipt requested, addressed to the Party at the address set out at the head of this Agreement, or such other address as a Party may notify the other from time to time in accordance with this Section 14.11. Notice will be deemed to have been received upon physical receipt by the recipient, as evidenced by the fax confirmation or return receipt. Notices received after 5:00 p.m. local time, or on a Saturday, Sunday or public holiday in the place of receipt, will be deemed to have been received at 9:00 a.m. on the next Business Day.
14.13 Further Assurances. In furtherance of the provisions hereof, the Parties agree to take or cause to be taken such further actions and to execute, deliver and file, or cause to be executed, delivered and filed, such further documents and instruments as may be reasonably necessary in order to fully effectuate the purposes, terms and conditions.
14.14 Representation by Counsel; Fair Negotiation. Each Party agrees that it has read and understands this Agreement, and that it has had the opportunity to be represented by independent counsel of its choice in the negotiation of this Agreement. This Agreement will therefore be deemed to have been negotiated and prepared at the joint request, direction, and construction of the Parties, at arms’ length and with the advice and participation of counsel, and will be interpreted in accordance with its terms without favor to either Party.
14.15 Third-Party Beneficiaries. Every Subsidiary of Provider is an intended third-party beneficiary of this Agreement and each Service Order with rights of enforcement.
14.16 Entire Agreement. This Agreement, including the Product and Services Agreement and all agreed Service Orders, is the entire agreement and understanding between the Parties with respect to the Services, and supersedes all prior communications, representations and agreements between the Parties, whether written or oral, relating to the subject matter of a Service Order. The Parties acknowledge that no reliance is placed on any communication, representation or agreement made but not embodied in this Agreement, and waive any right either Party may have in respect of any misrepresentation not contained in this Agreement, unless such misrepresentation was made fraudulently.