GENERAL TERMS AND CONDITIONS FOR SERVICES
1. Definitions: Initial capitalized terms used but not otherwise defined herein shall have the meanings given to them in the respective Agreement.
2. Consequences of Expiration/Termination: Upon the expiration or termination of an Agreement: (a) the Parties will remain responsible and liable for all of their respective obligations and liabilities accrued before the expiration or termination of the Agreement; and (b) the Client will promptly pay to the Company all fees and expenses for Services performed prior to the expiration or termination of the Agreement.
3. Suspension of Work: If the Client fails to make any payments when due under an Agreement, the Company may suspend the provision of Services until the Client makes the required payments.
4. Feedback: If the Client or its personnel submit to the Company any ideas, suggestions, or materials, including ideas for any enhancements or improvements to the Services or the Deliverables (collectively "Feedback"), they automatically grant to the Company and its successors, assigns, and licensees a perpetual, worldwide, royalty free, transferable, and sublicenseable license to use the Feedback as they consider appropriate in their discretion without providing any compensation to the Client or any other person.
5. Indemnity: The Client will defend, indemnify, and hold harmless the Company and its licensors, suppliers, and representatives from and against any and all third party claims, demands, liabilities, obligations, actions, suits, and proceedings directly or indirectly arising from, connected with or relating to the Client's use of the Services, or any negligence, misconduct, or breach of an Agreement by the Client or any person for whom the Client is responsible under an Agreement or at law.
6. Survival: Notwithstanding any other provision of an Agreement, if an Agreement is terminated for any reason, the following provisions of an Agreement, and all other provisions necessary to their interpretation or enforcement, will survive indefinitely after the termination of the Agreement and will remain in full force and effect and be binding upon the Parties as applicable: Sections 3 of the Agreement and the terms and conditions in the General Terms.
7. Calculation and Rates: If the Statement of Work specifies a fixed fee for a Service, then the fees payable by the Client for the Service will be the specified fixed fee amount. If the Statement of Work does not specify a fixed fee for a Service, then the fees for the Service will be calculated based upon hours/days worked by the Company personnel and the hourly/daily rates specified or referenced in the Statement of Work, provided that if hourly/daily rates are not specified or referenced in the Statement of Work the fees will be based upon the Company's then-current standard rates.
8. Payment Terms: The Company will issue invoices to the Client for fees and expenses payable under an Agreement. Each invoice is due and payable within thirty (30) days after the date of the invoice, unless the Statement of Work requires payment in advance. Except as expressly set forth in an Agreement, payment obligations are not cancellable and advance payments are not refundable under any circumstances. Overdue payments will be subject to interest at a rate of 1.5% for each month (18% per annum) or fraction thereof that the payment is overdue, or the highest rate permitted by applicable law, whichever is lower. Except to the extent required by law, all amounts payable to the Company under an Agreement are payable in full without any deduction or withholding.
9. Third Party Products: Services will typically cover a wide range of activities including provision of advice, best practices, testing and reporting, and hands-on work at the Client's facilities. Services may also include advice relating to the engagement of third parties that will provide hardware, software, and services to the Client (collectively, "Third Party Products"). Notwithstanding anything in an Agreement to the contrary, the Client acknowledges that all decisions to purchase, engage, or license Third Party Products rest solely with the Client.
10. Warranty: The Company warrants that the Services will be performed in a good and proficient manner consistent with generally accepted reasonable standards of skill and competence in the software professional services industry. If there is a breach by the Company of the foregoing warranty, the Client's sole and exclusive remedies and the Company's sole obligations to the Client are, at the Company's option, re-performance of the deficient Services at no additional cost, or termination of the Agreement and License with reimbursement of fees paid for the deficient Services after return of related Deliverables and/or Company Materials. The foregoing warranty and remedies will be available only if a deficiency notice is delivered within ninety (90) days from the date on which the deficient Services are performed.
11. Disclaimers: To the extent permitted by applicable law, the warranty set forth in Section 10 of these General Terms is in lieu of all other representations, warranties, conditions, and guarantees by the Company, whether express, implied, statutory, or arising from custom or trade usage or by any course of dealing or course of performance, or otherwise. Except for the warranty set forth in Section 10, Services, Deliverables and Company Materials are provided "as is and with all faults", and without any representations, warranties, conditions, or guarantees of any nature or kind whatsoever, including any representations, warranties, conditions, or guarantees relating to durability, fitness for a particular purpose, merchantability, non-infringement, performance, quality, results, suitability, timeliness, title, or workmanlike effort, all of which are disclaimed by the Company to the fullest extent permitted by law.
12. Third Party Products: The Company is not the provider, reseller, developer and/or manufacturer of Third Party Products and makes no representations, warranties, conditions, or guarantees of any nature or kind whatsoever relating to Third Party Products. The Client is solely responsible and liable for the selection and use of the Third Party Products to achieve the Client's desired results. The Client uses Third Party Products at the Client's own risk and is solely responsible and liable for verifying all results from the use thereof.
13. Exclusion/Limitation of Liability: Notwithstanding any provision of an Agreement, and to the maximum extent permitted by applicable law, the Company's liability arising from, connected with or relating to the Services, the Deliverables, the Company Materials, or an Agreement is limited to direct damages suffered by the Client only. In no event will the Company be liable for indirect, incidental, consequential, special, punitive or exemplary loss or damage, or for loss of data, information, business, markets, savings, income, profits, use, production, goodwill, anticipated or otherwise. The Company's total aggregate liability will not exceed the total amount of fees actually paid by the Client under the Agreement.
14. Acknowledgement: The Client acknowledges and agrees that it is reasonable for the Company to disclaim responsibility and exclude and limit its liability; each Agreement presents a fair allocation of risk and liability, and Section 13 is an essential part of the Agreement, a controlling factor in setting the fees payable by the Client, and an inducement to the Company to enter into the Agreement.
15. General: It is expected that the Services described in the Statement of Work will result in written materials that will be delivered to the Client. Reports and other written materials produced specifically for the Client are referred to herein as "Deliverables". Other materials provided to the Client, including analytical models and methodology, toolchains and methodology, photos or videos, and materials not unique to the Client such as software, training materials, and forms (collectively, "Company Materials"), are not Deliverables under an Agreement and are subject to the License described below.
16. License: Subject to the provisions of an Agreement and the Client's prompt payment of all applicable fees, the Company grants to the Client a non-exclusive, personal, non-sublicensable, non-transferable, restricted and limited license to use the Company Materials for the Client's internal business operations only (the "License"). The License will subsist unless and until terminated in accordance with Section 16 of these General Terms.
17. Termination of License: The Company may in its discretion terminate a License for cause effective immediately upon delivery of a termination notice to the Client if the Client breaches any applicable Agreement obligations or Section 18 of these General Terms.
18. Restrictions/Requirements: The Client will not, directly or indirectly: (a) use, disclose, or provide or permit access to or use of the Company Materials except as expressly permitted in an Agreement; (b) conceal, modify, or remove any proprietary rights notices on, in or in relation to the Company Materials; or (c) license, sublicense, sell, lend, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, rent, create any interest in, or otherwise give or make available the Company Materials to or for the benefit of any other person.
19. Reservation of Rights: Notwithstanding any other provision of an Agreement: (a) the Company Materials are licensed, not sold, to the Client, and the Client will not acquire any right, title, or interest except as expressly set forth; (b) as between the Parties, the Company owns and will at all times solely and exclusively retain all right, title and interest in and to the Company Materials; and (c) all rights in respect of Deliverables not expressly granted under an Agreement are reserved to the Company.
20. Confidential Information: In an Agreement, "Confidential Information" means all non-public information, in any form and on any medium, identified by a Party as confidential and disclosed to the other Party under the Agreement or pursuant to related negotiations. Information will not be considered Confidential Information to the extent it is already known without restriction, subsequently learned from an independent third party without restriction or breach, becomes publicly available through no wrongful act, or is independently developed without reference to the Disclosing Party's Confidential Information.
21. Duty to Protect: The Receiving Party will use Confidential Information only during the term of the Agreement and only to the extent necessary to perform obligations and exercise rights under the Agreement; disclose it only to personnel where necessary; maintain its strict confidentiality during the term and for three (3) years thereafter using reasonable care; and ensure that persons to whom Confidential Information is disclosed comply with the applicable requirements and restrictions.
22. Return and Destruction of Confidential Information: Upon termination of the Agreement or upon request by the Disclosing Party, the Receiving Party will promptly deliver all originals and copies of the Disclosing Party's Confidential Information and related materials in its possession, power, or control, use commercially reasonable efforts to delete such Confidential Information from its systems, and request that all persons to whom it has provided Confidential Information comply with this requirement.
23. Injunctive Relief: The Client acknowledges and agrees that a breach of its obligations relating to Company Materials and Confidential Information will result in irreparable harm, loss, and damage to the Company for which monetary damages may be inadequate. In addition to all remedies available at law or in equity, the Company will be entitled to judicial relief by way of restraining order, interim, interlocutory, or permanent injunction, or order for specific performance.
24. Governing Law and Dispute Resolution: An Agreement, the subject matter of the Agreement and all related matters and legal relationships will be governed by the laws of the Province of British Columbia, Canada. Disputes will be referred to and finally resolved by binding arbitration administered by the Canadian Arbitration Association by a single impartial arbitrator. The arbitration will be private and confidential, the place of arbitration will be Vancouver, British Columbia, and the language will be English. The Parties may seek appropriate judicial equitable remedies from applicable courts sitting in Vancouver, British Columbia, and irrevocably waive all rights to trial by jury.
25. Force Majeure: Notwithstanding any other provision of an Agreement, and except for the payment of money, neither Party will be liable for any delay in performing or failure to perform any obligations to the extent performance is delayed or prevented due to causes beyond that Party's reasonable control.
26. Miscellaneous: The Parties are non-exclusive, independent contracting parties, and nothing in an Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship. If any provision is held invalid or unenforceable, it will be severed and the remaining provisions will continue in full force and effect unless the Agreement would fail in its essential purpose. No consent or waiver will be effective unless in writing and signed by both Parties. The Parties have requested and required that each Agreement and all related documents be written in English. An Agreement may be executed and delivered in one or more counterparts, each deemed an original.
27. Entire Agreement: Each Agreement, including these General Terms and any Statement of Work, constitutes the complete agreement between the Company and the Client with respect to the subject matter of the Agreement, and supersedes all previous communications or understandings, whether oral or written, with respect to the subject matter of the Agreement.
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