Copyright © 2023 Dyggz Marketing Inc. All rights reserved.
Published: May 5, 2023.
Effective date of this Agreement: May 5, 2023
This Professional Services Master Agreement (this “Agreement”) is by and between [CHOOSE ONE: Dyggz Marketing Inc. (OR Dyggz Marketing Inc. d/b/a CalliaMedia], a British Columbia corporation with its principal place of business at 139 Bastion Street, Nanaimo, British Columbia V9R 3A2 (the “Service Provider”) and you (the “Client”).
WHEREAS, Service Provider is offers professional consulting, marketing, digital advisory, graphic design, lead generation, web design, each of which are provided upon the terms and conditions of this Agreement, as well as hosting and maintenance services under a separate agreement.
WHEREAS, Client desires to retain Service Provider to provide only those services noted in the Statement of Work, and Service Provider is willing to perform such services.
WHEREAS, Service Provider and Client desire to enter into this Agreement to set forth the terms and conditions which will govern the provision of such services and the business relationship between the Parties with respect to the same.
NOW THEREFORE, in consideration of the foregoing recitals, which shall be considered an integral part of this Agreement, the mutual covenants set forth hereafter, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
”Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
”Change Order” has the meaning set forth in Section 5.2.
”Claim” has the meaning set forth in Section 11.1.
”Confidential Information” means any information that is treated as confidential by a party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure before receipt of such information from the Disclosing Party; (b) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (c) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (d) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
”Client” has the meaning set forth in the preamble.
”Client Contract Manager” has the meaning set forth in Section 4.1(a).
”Client Equipment” means any equipment, systems, cabling or facilities provided by Client and used directly or indirectly in the provision of the Services.
”Client Materials” means any documents, data, know-how, methodologies, software and other materials provided to Service Provider by Client.
”Client’s Request for Proposal” means the Client’s request for the Service Provider to provide the Services.
”Deliverables” means all documents, work product and other materials that are delivered to Client hereunder or prepared by, or on behalf of, Service Provider in the course of performing the Services, including any items identified as such in a Statement of Work.
”Disclosing Party” means a party that discloses Confidential Information under this Agreement.
”Force Majeure Event” has the meaning set forth in Section 17.1.
”Intellectual Property Rights” means rights in all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trade-marks, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, (e) industrial designs and design rights, and (f) all other intellectual property rights, in each case whether registered or unregistered, and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
”Key Personnel” means any Service Provider Personnel who is identified as being key in a Statement of Work.
”Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
”Losses” mean all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
”Permitted Subcontractor” has the meaning set forth in Section 3.1(h).
”Person” means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association or other entity.
”Pre-Existing Materials” means the pre-existing materials specified in a Statement of Work/all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by Service Provider in connection with performing the Services, in each case developed or acquired by the Service Provider before the commencement of this Agreement.
”Project” means the project as described in a Statement of Work.
”Project Milestone” means an event or task described in a Statement of Work which shall be completed by the relevant date set forth in the Statement of Work.
”Receiving Party” means a party that receives or acquires Confidential Information directly or indirectly under this Agreement.
”Service Provider” has the meaning set forth in the preamble.
”Service Provider Contract Manager” has the meaning set forth in Section 3.1(a)(i).
”Service Provider Equipment” means any equipment or systems provided by or on behalf of Service Provider and used directly or indirectly in the provision of the Services.
”Service Provider Personnel” means all employees and Permitted Subcontractors, if any, engaged by Service Provider to perform the Services.
”Service Provider Proposal” means Client’s Request for Proposal for the Services and Service Provider’s response, if any, attached as Schedule C, describing how Service Provider proposes to carry out the Services or Project.
”Services” mean any professional or other services to be provided by Service Provider under this Agreement, as described in more detail in a Statement of Work, and Service Provider’s obligations under this Agreement.
”Statement of Work” means each Statement of Work entered into by the parties and attached to this Agreement, substantially in the form of Schedule A.
”Term” has the meaning set forth in Section 6.
2.1 Service Provider shall provide the Services to Client as described in more detail in each Statement of Work in accordance with the terms and conditions of this Agreement.
2.2 Each Statement of Work shall include the following information, if applicable:
(a) a detailed description of the Services to be performed pursuant to the Statement of Work;
(b) the date upon which the Services will commence and the term of such Statement of Work;
(c) the names of the Service Provider Contract Manager and any Key Personnel;
(d) the fees to be paid to Service Provider under the Statement of Work;
(e) the Project implementation plan, including a timetable;
(f) Project Milestones and payment schedules;
(g) any criteria for completion of the Services or Project;
(h) procedures for the testing and acceptance of the Services and Deliverables by Client; and
(i) any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.
3.1 The Service Provider shall:
(a) appoint:
(i) a Service Provider employee to serve as a primary contact with respect to this Agreement and who will have the authority to act on behalf of Service Provider in connection with matters pertaining to this Agreement (the “Service Provider Contract Manager”); and
(ii) Key Personnel/Service Provider Personnel, who shall be suitably skilled, experienced and qualified to perform the Services;
(b) maintain the same Service Provider Contract Manager and other Key Personnel throughout the Term of this Agreement except for changes in such personnel due to:
(i) Client’s request under Section 3.1(c); or
(ii) the resignation or termination of such personnel or other circumstances outside of Service Provider’s reasonable control;
(c) upon the reasonable written request of Client, promptly replace the Service Provider Contract Manager and any other Service Provider Personnel;
(d) before the date on which the Services are to start, obtain, and at all times during the Term maintain, all necessary license, certifications, permits, registrations and consents and comply with all relevant Laws applicable to the provision of the Services;
(e) comply with, and ensure that all Service Provider Personnel comply with, all rules, regulations, policies and directives of Client that are communicated to Service Provider , including security procedures concerning systems and data and remote access thereto, building security procedures and occupational health and safety practices and procedures;
(f) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Service Provider in providing the Services. During the Term, upon Client’s written request, Service Provider shall allow Client or Client’s representative to obtain electronic copies of such records; provided that any such request shall take place during regular business hours no more than once per year and Client provides Service Provider with at least ten (10) business days advance written notice;
(g) Service Provider shall remain fully responsible for the performance of all subcontractors and Affiliates of Service Provider, other than Service Provider’s employees to provide any Services and Deliverables to Client (each such approved subcontractor or other third party, a “Permitted Subcontractor”) for their compliance with all of the terms and conditions of this Agreement as if they were Service Provider’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Client and any Service Provider subcontractor or supplier; and
(h) require each Permitted Subcontractor to be bound in writing by the confidentiality and intellectual property assignment or license provisions of this Agreement.
3.2 Service Provider is responsible for all Service Provider Personnel and for the payment of their compensation, including, if applicable, termination payments or entitlements and statutory withholdings and deductions, such as income tax, Canada Pension Plan, employment insurance, workers’ compensation premiums and other payroll taxes.
3.3 Service Provider acknowledges that time is of the essence with respect to Service Provider’s obligations hereunder and that prompt and timely performance of all such obligations, including all Project Milestones and other requirements in this Agreement and each Statement of Work, is strictly required.
4.1 Client shall:
(a) cooperate with Service Provider in all matters relating to the Services and appoint a Client employee to serve as the primary contact with respect to this Agreement and have the authority to act on behalf of Client with respect to matters pertaining to this Agreement (the “Client Contract Manager”);
(b) provide, subject to Section 3.1(g), such access to all necessary credentials for Client’s online properties; and if any of the Services are to be provided on Client’s premises, then provide, subject to Section 3.1(g), such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by Service Provider for the purposes of performing the Services;
(c) respond promptly to any Service Provider request, but not later than seven (7) calendar days from such request, to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
(d) provide such Client Materials and information as Service Provider may request to carry out the Services, within seven (7) calendar days, but not later than fourteen (14) calendar days from such request if Client requires additional time, and ensure all Client Materials are complete and accurate in all material respects;
(e) obtain and maintain all necessary licenses, approvals, permits and consents and comply with all applicable Law in relation to the Services to the extent that such licenses, consents and Law relate to Client’s business, premises, staff and equipment, in all cases before the date on which the Services are to start;
4.2 If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client , Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
5.1 If either party wishes to change the scope or performance of the Services, then such party shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time after such request (and, if such request is initiated by Client, not more than seven (7) business days after receipt of Client’s written request), provide a written estimate to Client of:
(a) the likely time required to implement the change;
(b) any necessary variations to the fees and other charges for the Services arising from the change;
(c) the likely effect of the change on the Services; and
(d) any other impact the change might have on the performance of this Agreement.
5.2 Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (each, a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 18.10.
7.1 In consideration of the provision of the Services by the Service Provider and the rights granted to Client under this Agreement, Client shall pay the fees set forth in each applicable Statement of Work. Payment to Service Provider of such fees and the reimbursement of expenses under this Section 7 shall constitute payment in full for the performance of the Services, and, Client shall not be responsible for paying any other fees, costs or expenses.
7.2 Where the Services are provided on a time and materials basis:
(a) the fees payable for the Services shall be calculated in accordance with Service Provider’s daily or hourly rates for the Service Provider Personnel; and
(b) Service Provider shall issue invoices to Client for its fees, calculated as provided in this Section 7.2, together with a detailed breakdown of any expenses for such month incurred in accordance with Section 7.4.
7.3 Where Services are provided for a fixed price, the total fees for the Services shall be the amount set out in the applicable Statement of Work. The total price shall be paid to Service Provider in instalments, as set out in the Statement of Work. At the end of a period specified in the applicable Statement of Work in respect of which an instalment is due, Service Provider shall issue invoices to Client for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with Section 7.4.
7.4 Client agrees to reimburse Service Provider for all actual, documented and reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services that have been approved in advance in writing by Client; provided that such expenses conform to Client’s standard travel and expense policy, a copy of which is attached as Schedule B.
7.5 Service Provider shall issue invoices to Client only in accordance with the terms of this Section 7, and Client shall pay all properly invoiced amounts due to Service Provider upon receipt unless stated otherwise in such invoice. All payments hereunder shall made by certified cheque, debit card, credit card, or wire transfer in the currency set forth in Client’s invoice.
7.6 Client shall be responsible for all goods and services, harmonized sale, sales, service, use and excise taxes, and any other similar sales taxes, duties and charges of any kind imposed by any federal, provincial, territorial or municipal governmental entity or regulatory authority on any amounts payable by Client hereunder
7.7 Service Provider adds a late payment charge of twenty four percent (24%) per annum or the maximum allowable interest rate allowable at law, whichever is greater, to all outstanding amounts that are not paid by Client within thirty (30) days from the due date specified on the invoice. In the event that Client’s account becomes delinquent, all installment payments that have been previously made by Client will be non-refundable and Service Provider may, at its sole option, cease any remaining performance obligations under this Agreement or any related agreement for Client until payment is made in full by Client. Without prejudice to any other right or remedy it may have, Service Provider reserves the right to set-off at any time any amount owing to it by Client against any amount payable by Client to Service Provider under this Agreement.
8.1 Except as set forth in Section 8.3, Client is, and shall be, the sole and exclusive owner of all right, title and interest in and to the Deliverables, including all Intellectual Property Rights therein. Service Provider hereby irrevocably assigns, and shall cause the Service Provider Personnel and Permitted Subcontractors to irrevocably assign to Client, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Service Provider shall cause the Service Provider Personnel and Permitted Subcontractors to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Service Provider Personnel and Permitted Subcontractors may now or hereafter have in any jurisdiction to any moral rights with respect to the Deliverables. No rights will be granted to Client in the event of early termination or breach of this Agreement by Client. Client acknowledges that in providing the Services, Service Provider may be utilizing commercially available third-party materials and software that Service Provider licenses and designs to its client’s specifications. Service Provider has no ownership right in such third-Party Intellectual Property and can only pass on to Client the same right to use as Service Provider has received; therefore, all third-party materials and software shall remain the exclusive property of such third-party.
8.2 Upon the reasonable request of Client, Service Provider shall, and shall cause the Service Provider Personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect or record its rights in or to any Deliverables.
8.3 Service Provider and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to the Pre-Existing Materials, including all Intellectual Property Rights therein. Service Provider hereby grants Client a license to use any Pre-Existing Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by Service Provider.
8.4 Client shall remain, the sole and exclusive owner of all right, title and interest in and to the Client Materials, including all Intellectual Property Rights therein. Service Provider shall have no right or license to use any Client Materials except solely during the Term of the Agreement to the extent necessary to provide the Services to Client. All other rights in and to the Client Materials are expressly reserved by Client.
9.1 The Receiving Party agrees:
(a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party; provided that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its officers, directors, employees, consultants and legal advisors who have a need to know, who have been apprised of this restriction and who are themselves bound by non-disclosure obligations at least as restrictive as those set forth in this Section 9;
(b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations under the Agreement or, in the case of Client, to make use of the Services and Deliverables; and
(c) to promptly notify the Disclosing Party if it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.
9.2 If the Receiving Party becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide:
(a) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and
(b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If, after providing such notice and assistance as required herein, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
10.1 Each party represents and warrants to the other party that:
(a) it is formed validly existing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation or formation;
(b) it has the requisite power and capacity to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder;
(c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and
(d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
10.2 Service Provider represents and warrants to Client that:
(a) it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with commercially reasonable industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement;
(b) it is in compliance with, and shall perform the Services in compliance with, all applicable Laws;
(c) Client will receive good and valid title to all Deliverables, free and clear of all encumbrances, security interests and liens of any kind;
(d) to Service Provider’s knowledge: (i) none of the Services, Deliverables and Client’s use thereof infringe or will infringe any Intellectual Property Right of any third party arising under the Laws of Canada, and, (ii) as of the date hereof, there are no pending or threatened claims, litigation or other proceedings pending against Service Provider by any third party based on an alleged violation of such Intellectual Property Rights, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of any Client Materials or other materials provided by Client to Service Provider, use of the Deliverables in combination with any materials or equipment not supplied or specified by Service Provider (if the infringement would have been avoided by the use of the Deliverables not so combined), and any modifications or changes made to the Deliverables by or on behalf of any Person other than Service Provider. Service Provider’s sole liability and Client’s sole and exclusive remedy for Service Provider’s breach of this Section 10.2(d) are Service Provider’s obligations under Section 11.2;
(e) the Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in this Agreement and the applicable Statement of Work upon delivery to Client. If Service Provider breaches the foregoing warranty, Service Provider’s sole and exclusive obligation and liability and Client’s sole and exclusive remedy shall be as follows:
(i) The Service Provider shall use reasonable efforts to cure such breach; provided that, if Service Provider cannot cure such breach within a reasonable time (but no more than ninety (90) days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 18.4.
(ii) The foregoing remedy shall not be available unless Client provides written notice of such breach within ten (10) days after delivery of such Service or Deliverable to Client.
10.3 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
11.1 Service Provider shall defend, indemnify and hold harmless Client and its officers and directors, (each, a “Client Indemnitee”) from and against all Losses awarded against a Customer Indemnitee in a final judgment arising out of or resulting from any third-party claim, suit, action, proceeding or government order or prosecution (each, an “Claim”) arising out of or resulting from Service Provider’s material breach of any representation, warranty or obligation of Service Provider set forth in in Section 10.1 and Section 10.2 of this Agreement.
11.2 Service Provider shall defend, indemnify and hold harmless the Client Indemnitees from and against all Losses awarded against a Customer Indemnitee in a final judgment based on a claim that any of the Services or Deliverables or Client’s receipt or use thereof infringes any Intellectual Property Right of a third party arising under the Laws of Canada; provided however, that Service Provider shall have no obligations under this Section 11.2 with respect to claims to the extent arising out of:
(a) any Client Materials or any instruction, information, designs, specifications or other materials provided by Client in writing to Service Provider;
(b) use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Service Provider in writing, if the infringement would have been avoided by the use of the Deliverables not so combined; or
(c) any modifications or changes made to the Deliverables by or on behalf of any Person other than Service Provider or Service Provider Personnel.
11.3 Client shall defend, indemnify and hold harmless Service Provider and its officers, directors, agents, successors and permitted assigns from and against all Losses awarded against Service Provider in a final judgment arising out of or resulting from any third-party Claim arising out of or resulting from Client’s breach of any representation, warranty or obligation of Client in this Agreement or warranty set forth in Section 10.1 of this Agreement.
11.4 The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Claim and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defence and investigation of such Claim and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Claim in a manner that adversely affects the rights of the indemnified party without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 11.4 shall not relieve the indemnifying party of its obligations under this Section 11.4 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
12.1 EXCEPT AS OTHERWISE PROVIDED IN Section 12.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2 EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL SERVICE PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED FIFTY PERCENT (50%) OF THE AGGREGATE AMOUNTS PAID TO SERVICE PROVIDER UNDER THE APPLICABLE STATEMENT OF WORK.
12.3 The exclusions and limitations in Section 12.1 and Section 12.2 shall not apply to:
(a) damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 8 (Intellectual Property Rights; Ownership);
(b) damages or other liabilities arising out of or relating to a party’s failure to comply with its obligations under Section 9 (Confidentiality);
(c) a party’s indemnification obligations under Section 11 (Indemnification);
(d) damages or other liabilities arising out of or relating to a party’s gross negligence, wilful misconduct or intentional acts;
(e) damages or liabilities to the extent covered by a party’s insurance; and
(g) a party’s obligation to pay legal fees and court costs in accordance with Section 18.15.
13.1 Either party, in its sole discretion, may terminate this Agreement or any Statement of Work, in whole or in part, at any time without cause, by providing at least thirty (30) days’ prior written notice to the other party.
13.2 Except as noted in Section 10.2(e), either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
(a) breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
(b) at any time during the Term (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13.3 Upon expiration or termination of this Agreement for any reason:
(a) Service Provider shall (i) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and all Client Materials, (ii) promptly remove any Service Provider Equipment located at Client’s premises, (iii) provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to an alternate Service Provider.
(b) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information, (ii) permanently erase all of the other party’s Confidential Information from its computer systems and (iii) certify in writing to the other party that it has complied with the requirements of this clause; provided that Client may retain copies of any Confidential Information of Service Provider incorporated in the Deliverables or to the extent necessary to allow it to make full use of the Services and any Deliverables.
(c) In no event shall Client be liable for any Service Provider Personnel termination costs arising from the expiration or termination of this Agreement.
13.4 The rights and obligations of the parties set forth in this Section 13.4 and Section 8, Section 9, Section 10, Section 12, Section 13, Section 14, Section 15, and Section 18, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
14.1 No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation:
(a) acts of God;
(b) flood, tsunami, fire or explosion;
(c) war, invasion, riot or other civil unrest;
(d) actions, embargoes or blockades in effect on or after the date of this Agreement;
(e) national or regional emergency;
(f) strikes, labour stoppages or slowdowns or other industrial disturbances;
(g) compliance with any law or governmental order, rule, regulation or direction, or any action taken by a governmental or public authority, including imposing business restrictions based upon federal or provincial health authority orders, imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary licence or consent; or
(h) shortage of adequate power or telecommunications or transportation facilities
(each of the foregoing, a “Force Majeure Event”). A party whose performance is affected by a Force Majeure Event shall give notice to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
14.2 During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance.
14.3 The non-affected party may terminate any affected Statement of Work if such failure or delay continues for a period of one-hundred twenty (120) days or more and, if the non-affected party is Client, receive a refund of only those amounts paid to Service Provider in advance for the Services that have been impacted by the Force Majeure Event, pro-rated to exclude any partial Services performed by Service Provider and third-party purchases many on behalf of Client prior to notice of the Force Majeure Event. Unless this Agreement is terminated in accordance with this Section 17.3, the Term of this Agreement shall be automatically extended by a period equal to the period of suspension.
15.1 Each party shall, upon the reasonable request, and at the sole cost and expense, of the other party, promptly execute such documents and perform such acts as may be necessary to give full effect to the terms of this Agreement.
15.2 The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
15.3 Client shall not issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement, or otherwise use Service Provider’s trade-marks, service marks, trade names, logos, symbols or brand names, in each case, without the prior written consent of Service Provider, which shall not be unreasonably withheld or delayed. Service Provider retains the right to reproduce, publish and display the Deliverables in its portfolios, websites, marketing materials, and other media or exhibits for the purposes of marketing and promotion of Service Provider’s services.
15.4 All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient or (d) on the fourth (4th) day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses indicated in the first paragraph of this Agreement or in the most Statement of Work, whichever is most recent, or at such other address for a party as shall be specified in a notice given in accordance with this Section 18.4.
18.5 For purposes of this Agreement, (a) the words “include”, “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections, Schedules, Exhibits and Statements of Work refer to the Sections of, and Schedules, Exhibits and Statements of Work attached to this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules, Exhibits and Statements of Work referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
18.6 This Agreement, together with all Schedules, Exhibits and Statements of Work and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of this Agreement and those of any Schedule, Exhibit or Statement of Work, the following order of precedence shall govern: (a) first, this Agreement, exclusive of its Exhibits and Schedules; (b) second, the applicable Statement of Work; and (c) third, any Exhibits and Schedules to this Agreement; and (d) fourth, the Service Provider Proposal, if any.
18.7 Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided that, Service Provider may assign the Agreement to an Affiliate of such party or to a successor of all or substantially all of the assets of such party through amalgamation, arrangement, reorganization or acquisition. Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
18.8 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
18.9 The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
18.10 This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18.11 If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
18.12 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any purchases or transactions entered into pursuant to this Agreement. This Agreement shall be governed in all respects by the laws of British Columbia without regard to its conflict of law rules. Venue for any lawsuit brought by the Parties to this Agreement against each other regarding or as a result of this Agreement shall be proper only in an appropriate court located within Victoria, British Columbia, and the Parties hereby submit to the exclusive jurisdiction of said courts.
18.13 Each party acknowledges that a breach by a party of Section 8 (Intellectual Property Rights; Ownership) or Section 9 (Confidentiality) may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
18.14 In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable legal fees and court costs from the non-prevailing party.
