Professional Services Standard Terms and Conditions
1. SERVICES
1.1 Statement of Work. Service Provider and Customer will execute the statement of work attached as SCHEDULE “A” that describe the specific Services to be performed by the Service Provider (as executed by the parties, a “Statement of Work”). The Statement of Work may be amended only by written agreement of the parties.
1.2 Services. Service Provider will perform services specified in the Statement of Work (the “Services”) in accordance with the terms and conditions of this Agreement.
1.3 Customer Responsibilities. In connection with the Statement of Work, Customer will: (i) provide qualified personnel who are capable of performing Customer’s duties and tasks under the Statement of Work; (ii) perform Customer’s duties and tasks under the Statement of Work, and such other duties and tasks as may be reasonably required to permit Service Provider to perform Services, including, but not limited to, any data, information or materials specifically identified in the Statement of Work (collectively, “Customer Materials”). Customer will be responsible for ensuring that all such Customer Materials are accurate and complete.
1.4 Designated Contacts. Each party will designate in the Statement of Work one or more individuals who will serve as the point(s) of contact between the parties for all matters relating to Services to be performed thereunder. A party may designate new contacts by written notice to the other party.
1.5 Relationship of the Parties. Service Provider is performing Services as an independent contractor and nothing in this Agreement will be construed as establishing an employment, agency, partnership or joint venture relationship between Customer and Service Provider or any Service Provider’s personnel. Service Provider has no authority to bind Customer by contract or otherwise. Service Provider acknowledges and agrees that its personnel are not eligible for or entitled to receive any compensation, benefits or other incidents of employment that Customer makes available to its employees. Service Provider is solely responsible for all taxes, expenses, withholdings and other similar statutory obligations arising out of the relationship between Service Provider and its personnel and the performance of Services by such personnel.
1.6 Marketing Support. Each party recognizes that the name of the other party represents a valuable asset of such other Party and that substantial recognition and goodwill are associated with such trade names and various trademarks. Each Party hereby agrees that neither it nor any of its affiliates shall use the name, logo or any other trademarks of any other party without prior written authorization from such other Party.
2. PAYMENT
2.1 Fees and Expenses. For Service Provider’s performance of Services, Customer will pay Service Provider fees in accordance with the terms set forth in the Statement of Work.
2.2 Payment Terms. Service Provider will invoice Customer for all applicable fees based on Services performed by the Service Provider. Customer will pay each such invoice no later than terms outlined in the Statement of Work. Any unpaid amounts when due will earn interest at an annual rate of 18%.
2.3 Taxes. All fees hereunder do not include any sales, use, value added or other applicable taxes, tariffs or duties, payment of which will be the sole responsibility of Customer (excluding any taxes based on Service Provider’s net income). Customer will promptly reimburse Service Provider for any such amounts that Service Provider pays on Customer’s behalf.
3. OWNERSHIP
3.1 Customer. Customer will exclusively own all rights, title and interest in and to any research findings, tools, inventions, processes, devices, methodologies, specifications, documentation, techniques and materials of any kind developed by Service Provider or its personnel in connection with performing Services (collectively “Service Provider Materials”) and as indicated in the Statement of Work. Service Provider will have no rights in any Customer Materials except as expressly set forth in this Agreement.
3.2 License. Customer hereby grants, in favour of Service Provider, a non-exclusive, non-transferable, royalty free, right to use, copy, summarize and reverse engineer Customer Materials needed by the Service Provider in order to perform Services under the Statement of Work for the duration of this Agreement subject to confidentiality terms in Section 4 below.
4. CONFIDENTIAL INFORMATION
4.1 Confidential Information. “Confidential Information” means: (i) Customer Materials and Service Provider Materials; (ii) any business or technical information that a party discloses to the other party and designates as “confidential” at the time of disclosure; and (iii) any information that, due to its nature or the circumstances of its disclosure, the receiving party knows or has reason to know should be treated as confidential or proprietary.
4.2 Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information and who provides it without restrictions on use or disclosure.
4.3 Use and Disclosure Restrictions. Each party will not use any Confidential Information disclosed by the other party except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limed to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that, if not prohibited pursuant to applicable laws, the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement; (ii) to its legal or financial advisors.
5. WARRANTY
5.1 Services Warranty. Service Provider warrants that Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Services. As Customer’s sole and exclusive remedy and Service Providers entire liability for any breach of the foregoing warranty, Service Provider will, at its sole option and expense, promptly re-perform any Services that fails to meet this limited warranty or refund to Customer the fees paid for the non-conforming Services.
5.2 Warranty Disclaimers. THE EXPRESS WARRANTIES IN SECTION 5.1 ARE IN LIEU OF, AND SERVICE PROVIDER DISCLAIMS, ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
6. LIMITATION OF LIABILITY
IN NO EVENT WILL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) OR FOR COSTS OF PROCURING SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABLITY, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SERVICE PROVIDER’S TOTAL LIABLITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABLITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO SERVICE PROVIDER BY CUSTOMER UNDER THE STATEMENT OF WORK GIVING RISE TO ANY LIABILITY HEREUNDER.
7. NON-SOLICITATION
During the term of this Agreement and for a period of thirty-six (36) months thereafter, both Service Provider and Customer will not recruit or otherwise solicit for employment any Customer or Service Provider employees, directors, consultants or subcontractors who participated in the performance of Services without Customer or Service Provider’s express prior written approval.
8. TERM AND TERMINATION
8.1 Term. This Agreement will commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, will remain in force and effect until all Services is fully performed under the Statement of Work or outstanding Statement of Work has been terminated according to the terms of this Agreement.
8.2 Termination. Either party may terminate this Agreement if the other party breaches any material term of this Agreement or Statement of Work and fails to cure such breach within thirty (30) days after receipt of written notice thereof.
8.3 Effect of Termination. Upon the expiration or termination of this Agreement: (i) Service Provider will promptly return to Customer all Customer Materials; (ii) each party will promptly return to the other party all Confidential Information of the other party in its possession or control; and (iii) Customer will, within thirty (30) days after receipt of Service Provider’s invoice, pay all accrued and unpaid fees and expenses.
8.4 Survival. The rights and obligations of the parties contained in sections 2, 3, 4, 6, 7, 8.3, 8.4 and 9 will survive the expiration or termination of this Agreement and Statement of Work.
9. GENERAL
9.1 Assignment. Neither party may assign this Agreement without the other party’s prior written consent, except that a party may assign this Agreement, without the other party’s consent, to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger or acquisition, the sale of all or substantially all of such party’s assets, or the sale of that portion of such party’s business to which this Agreement relates. Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and assigns.
9.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the province of Ontario, Canada and the federal laws of Canada applicable therein, and the Parties herby submit to the exclusive jurisdiction of the courts of such province.
9.3 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
9.4 Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.
9.5 Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
9.6 Entire Agreement. This Agreement, together with Statement of Work, constitutes the complete and exclusive agreement of the parties with respect to its subject matter and supersedes all prior understandings and agreements, whether written or oral, with respect to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties hereto.
9.7 Force Majeure. If the performance by either Party or any of its obligations under this Agreement is delayed or prevented by circumstances beyond its reasonable control, then that Party will not be in breach of this Agreement because of any delay in performance. However, if the delay in performance exceeds six months, the other Party may terminate this Agreement with immediate effect by giving notice to the affected Party.
9.8 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
