CANADA - Standard Terms and Conditions - Amazing Bussiness Result

Amazing Business Results

Standard Terms and Conditions

Last updated on March 21, 2022

These Standard Terms and Conditions shall apply to any engagement or project of Amazing Business Results (“ABR”, “Consultant”, “we”, or “us”) and the client (“Client” or “you”) (Consultant and Clients are sometimes referred to as “party” or “parties” in this Agreement), unless specifically provided in the Zoho CRM Productivity Package and Consulting Master Services Agreement, the Statement of Work, attachment, Schedule, Exhibit, or any other document into which these Standard Terms and Conditions are incorporated (collectively, the “Agreement”). Please note that these Standard Terms and Conditions are subject to change any time at the sole discretion of Consultant. It is the Client’s responsibility to review the Standard Terms and Conditions by visiting the pages https://www.amazingbusinessresults.com/terms-and-privacy/ and https://www.amazingbusinessresults.com/standard-terms-and-conditions/ to ensure the continued agreement with all applicable terms. While reasonable efforts may be made by Consultant to notify Client about any changes to these Standard Terms and Conditions, Consultant does not assume any responsibility to do so.

For convenience reasons and ease of reference, Consultant and Client are sometimes referred to individually as the “Party” and collectively as the “Parties” in this Agreement.
WHEREAS, Client is of the opinion that Consultant has the necessary qualifications, experience, and abilities to provide consulting services to Client; and Client desires to retain Consultant to provide certain consulting services and deliverables described herein upon the terms and conditions hereinafter set forth,
WHEREAS, Consultant is willing to provide such consulting services and deliverables to Client, each on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Definitions
“Action” has the meaning set forth in 12.1.
“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.
“Agreement” has the meaning set forth in the preamble.
“Change of Scope of Services” has the meaning set forth in 5.1.
“Confidential Information” means any information that is treated as confidential by a Party, including but not limited to all non-public information about its business affairs, products or services, Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether disclosed orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”. Confidential information also includes all written and oral information and material disclosed or provided by Client to Consultant under this Agreement regardless of whether such information was provided before or after the date of this Agreement or how it was provided to Consultant by Client. Confidential Information shall not include information that: (a) is already known to the Receiving Party without restriction on use or disclosure prior to 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 4.1(a).
“Client Equipment” means any equipment, systems, technology, or facilities provided or maintained by Client and used directly or indirectly in the provision of the Services, where applicable.
“Client Materials” any documents, data, know-how, methodologies, software, and other materials provided to Consultant by Client, including computer programs, reports, and specifications.
“Consultant” has the meaning set forth in the preamble.
“Consultant Account Manager” has the meaning set forth in 3.1(a)(i).
“Consultant Equipment” means any equipment, systems, technology, or facilities provided by or on behalf of Consultant and used directly or indirectly in the provision of the Services, where applicable.
“Consultant Personnel” means all employees and Permitted Subcontractors, if any, engaged by Consultant to perform the Services.
“Consultant Proposal” means Client’s Request for Proposal for the Services and Consultant’s response, where applicable, attached as Exhibit A, describing how Consultant proposes to carry out the Services, where applicable.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by Law to be closed for business.
“Deliverables” means all documents, work product, and other materials that are delivered to Client hereunder or prepared by or on behalf of Consultant in the course of performing the Services, including any items identified as such in the Statement of Work.
“Disclosing Party” means a party that discloses Confidential Information under this Agreement.
“Dollar” means a U.S. Dollar.
“Force Majeure Event” has the meaning set forth in 15.
“Initial Term” shall mean the term during which the applicable Statement of Work is in effect.
“Intellectual Property Rights” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, 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, and (e) 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.
“Hourly-based Services” has the meaning set forth in Section 2.2(a)(ii).
“Key Personnel” means any Consultant Personnel who is identified as being key in the Statement of Work, where applicable.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any Province, local, 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 attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Package Expiration Date” with respect to Subscription-Based Services, date on which the term of this Agreement expires.
“Permitted Subcontractor” has the meaning set forth in 3.1(h).
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Pre-Existing Materials” means the pre-existing materials specified in the Statement of Work/all documents, data, know-how, methodologies, software, and other materials, including computer programs, reports, technology platforms, and specifications, provided by or used by Consultant in connection with performing the Services, in each case developed or acquired by the Consultant prior to the commencement or independently of this Agreement.
“Project” means a project as described in the Statement of Work.
“Project-based Services” has the meaning set forth in 2.2(a)(i).
“Project Milestone” means an event or task described in the 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.
“Renewal Term” has the meaning set forth in 7.
“Services” mean the consulting and other services to be provided by Consultant under this Agreement, as described in more detail in the Statement of Work, and Consultant’s obligations under this Agreement.
“Statement of Work” or “SOW” means the Statement of Work entered into by the Parties and attached to this Agreement, substantially in the form of Exhibit B. The Parties would enter into additional SOWs, depending on Client’s additional requests for Services to be provided under this Agreement. This Agreement shall be treated as a master agreement.
“Subscription-Based Services” has the meaning set forth in Section 2.2(a)(iii).
“Term” has the meaning set forth in Section 7.

2. Services

2.1 Consultant shall provide the Services to Client, as described in more detail in the 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, generally falling within one of three or any and all of the below Services categories:

Project-based Services – Services performed under this approach will be performed on a fixed fee basis. Any out-of-scope Services will be performed at standard hourly rates set forth in the Statement of Work, as applicable.
Hourly-based Services – Services performed under this approach will be performed on a standard hourly basis.
Subscription-Based Services – Services performed under this approach will be performed based on a pre-paid package of consulting hours purchased by Client, as described in the applicable Statement of Work. Any out-of-scope Services will be performed at reduced hourly rates set forth in the Statement of Work, as applicable. However, if Client cancels Subscription-based Services prior to the Package Expiration Date, any Services rendered by Consultant up to and including the date of cancellation will be charged at standard hourly rates (for which purpose, the total fees will be recalculated based on such standard hourly rates).

(b) the date upon which the Services will commence and the term of such Statement of Work;

(d) the fees to be paid to Consultant under the Statement of Work;

(e)the Project implementation plan, including a timetable, where applicable;

(f)Project Milestones and payment schedules, where applicable;

(g)any criteria for completion of the Services/Project, where applicable;

(h)procedures for the testing and acceptance of the Services and Deliverables by Client, where applicable and to the extent there are any difference from 6; 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. Consultant’s Obligations.

3.1 . The Consultant shall:

(a) appoint:

a Consultant employee to serve as a primary contact with respect to this Agreement and who will have the authority to act on behalf of Consultant in connection with matters pertaining to this Agreement (the “Consultant Account Manager”); and
Key Personnel/Consultant Personnel, who shall be suitably skilled, experienced, and qualified to perform the Services;

(b) maintain the same Consultant Account Manager and other Key Personnel throughout the Term of this Agreement except for changes in such personnel due to:

Client’s request pursuant to 3.1(c); or
the resignation or termination of such personnel or other circumstances outside of Consultant’s reasonable control;

(c) upon the reasonable written request of Client, use its best efforts to promptly replace the Consultant Account Manager and any other Consultant Personnel;

(d) before the date on which the Services are to start, obtain, and at all times during the Term of this Agreement maintain, all necessary licenses and consents and comply with all relevant Laws applicable to the provision of the Services;

(e) prior to any Consultant Personnel performing any Services hereunder: (i) ensure that such Consultant Personnel have the legal right to work in Canada; and (ii) at its sole cost and expense, conduct background checks on such Consultant Personnel, which background checks shall comprise, at a minimum, a review of credit history, references, and criminal record, in accordance with province, and local law;

(f) comply with, and ensure that all Consultant Personnel comply with, all rules, regulations, and policies of Client that are communicated to Consultant in writing, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures;

(g) maintain complete and accurate records of the time spent and materials used by Consultant in providing the Services in such form as Client shall approve. During the Term, upon Client’s written request, Consultant shall use its best efforts to allow Client or Client’s representative to inspect and make copies of such records and interview Consultant Personnel in connection with the provision of the Services; provided that any such inspection shall take place during regular business hours no more than once per year and Client provides Consultant with at least ten (10) business days/reasonable advance written notice;

(h) engage any Person, including all subcontractors and Affiliates of Consultant, other than Consultant’s employees, to provide any Services and Deliverables to Client, as may be necessary in Consultant’s sole discretion (each such subcontractor or other third party, a “Permitted Subcontractor”). In case Consultant is using Permitted Subcontractor, Consultant shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Consultant’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Client and any Consultant subcontractor or supplier; and

(i) require each Permitted Subcontractor to be bound in writing by the confidentiality and intellectual property assignment or license provisions of this Agreement.

3.2 Client understands and acknowledges that should Consultant recommend that Client retain the services of a third party, Consultant assumes no responsibility or liability for any such third party, whether retained by Client or not. In addition, Client is not required to retain the services of any third party by Consultant or act in any way on recommendation made by Consultant.

3.3 Client understands and acknowledges that should Client wish to use the services or products of a third party recommended by Consultant, Client will engage such a third party directly. Unless explicitly stated in this Agreement, Consultant will not be a party of any agreement, whether written or verbal, between Client and any third party. Consultant assumes no responsibility or liability for any issues arising from such third-party engagement by Client. Furthermore, Consultant makes no representations or warranties with respect to services or products provided to Client by a third party.

3.4 Consultant is responsible for all Consultant Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.

3.5 Consultant acknowledges that time is of the essence with respect to Consultant’s obligations hereunder and that prompt and timely performance of all such obligations is strictly required.

4. Client’s Obligations.

4.1 Client shall:

(a) cooperate with Consultant in all matters relating to the Services and appoint a Client employee to serve as the primary contact with respect to this Agreement and who will 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 3.1(f), such access to Client’s premises and such office accommodation and other facilities or technology as may reasonably be requested by Consultant for the purposes of performing the Services/each Project. In addition, Client shall provide Consultant with an unlimited and unrestricted access to Client platforms and technology environment that would allow Consultant perform the Services under this Agreement and applicable Statement of Work, without causing Consultant unnecessary delays and work interruptions;

(c) respond promptly to any Consultant request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Consultant to perform Services in accordance with the requirements of this Agreement;

(d) provide such Client Materials/information as Consultant may reasonably request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects; and

(e) ensure that all Client Equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant legal or industry standards or requirements, where applicable; and

(f) obtain and maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services, the installation of the Consultant Equipment, the use of Client Materials, and the use of the Client Equipment in relation to the Consultant Equipment 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.

(g) Client acknowledges and agrees that Consultant’s ability to perform Services under this Agreement is limited by the functionality of technology and systems Client uses and requires assistance with. As such, Consultant may be unable to use a testing environment (such as Sandbox in Zoho, for example) and may be required to use Client’s live systems. It is therefore critical for Client to have full and timely system backups, which is Client’s sole responsibility. Client shall be obligated to have data and platform backups on a regular basis that would allow Client to restore any data that may be lost while the Services under this Agreement are being rendered. Consultant does not assume any risk of data loss, nor does Consultant assume any liability for any potential outages as a result of Client’s failing in its obligation to backup and properly store data.

4.2 If Consultant’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, or its agents, subcontractors, consultants, or employees outside of Consultant’s reasonable control, Consultant 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. Change of Scope of Services.

5.1 If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing in accordance with the notice provisions in Section 16.3 by revising the applicable Statement of Work.

6. Product Testing.

6.1 Upon completion of every milestone pursuant to each Statement of Work and the delivery of all items required to be provided under the Service/Work Plan, Client shall have ten (10) business days from such completion to inspect, test and evaluate the work to determine whether it satisfies the acceptance criteria set forth in the Work Plan.

6.2 If the work does not satisfy the acceptance criteria as outlined in each Statement of Work, Client shall provide Consultant with written notice stating the deficiencies. Consultant shall have ten (10) business days from the receipt of such notice to correct the deficiencies. The Client shall then have ten (10) business days to inspect, test and re- evaluate the work. If the work still does not satisfy the acceptance criteria, the Client shall have the option of either: (1) repeating the procedures set forth above, or (2) terminating this Agreement pursuant to Section 7.

6.3 If and when the product tests establish that the work complies with the acceptance criteria, the Client shall notify the Consultant that it accepts the work. The date of such notification shall be the date on which the Client shall be obligated to make the final payment specified in the schedule set forth in the Work Plan.

6.4 The client acknowledges that should it not provide feedback on the work within 10 (ten) business days from completion and delivery of the services/work, unless otherwise agreed to in writing by the parties, the work will have been deemed acceptable upon the expiry of the ten (10) business day period.

7. Term and Termination.

7.1 Term. This Agreement shall commence as of the Effective Date and shall remain in effect indefinitely, unless either party terminates this Agreement pursuant to this Section 7.

7.2 Renewal. In case of a Subscription-Based Services or Hourly-Based Services, upon expiration of the Initial Term, this Agreement shall automatically renew for one month, unless either party provides written notice of nonrenewal at least 5 (five) business days prior to the end of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”). If the Term is renewed for one or more Renewal Term, the terms and conditions of this Agreement during each Renewal Term shall be the same as the terms and conditions in effect immediately prior to such renewal[, subject to any change in fees in accordance with 8.6. If either Party provides timely notice of nonrenewal, then this Agreement shall terminate on the expiration of the then-current Term, unless sooner terminated as provided in this 7.

7.3 Termination for Convenience. 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 5 days’ prior written notice to the other party.

7.4 Termination for Cause. Either party may terminate this Agreement or any SOW, 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 5 days after receipt of written notice of such breach; or

(b) (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 30 business days or is not dismissed or vacated within 30 business 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.

7.5 Effects of Termination or Expiration. Upon expiration or termination of this Agreement for any reason:
(a) Consultant shall (i) promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid, all Client Equipment, where applicable, and all Client Materials in its possession, where applicable, (ii) promptly remove any Consultant Equipment located at Client’s premises, where applicable, (iii) provide reasonable cooperation and assistance to Client upon Client’s written request and at Client’s expense in transitioning the Services to a different Consultant, and (iv) on a pro rata basis, repay all fees and expenses paid in advance for any Services not performed or Deliverables not provided.

(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, where applicable, (ii) permanently delete 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, however, that Client may retain copies of any Confidential Information of Consultant incorporated in the fully paid for 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 Consultant Personnel termination costs arising from the expiration or termination of this Agreement.

7.6 . Survival. The rights and obligations of the parties set forth in this 7.6 and 1, 9, n 10, 11, 13, 7.5, 14, and 16, 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.

8. Fees and Expenses; Payment Terms.

8.1 In consideration of the provision of the Services by the Consultant and the rights granted to Client under this Agreement, Client shall pay the fees set forth in the applicable Statement of Work. Payment to Consultant of such fees and the reimbursement of expenses pursuant to this 8 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.

8.2 Where the Services are provided on a time and materials basis using hourly-based approach:
(a) the fees payable for the Services shall be calculated in accordance with Consultant’s hourly fee rates set forth in the applicable Statement of Work; and

(b) Consultant shall issue invoices to Client weekly in arrears for its fees for time for the immediately preceding week, calculated as provided in this 8.2, together with a detailed breakdown of any expenses for such month incurred in accordance with 8.5, if applicable.

8.3 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 Consultant by making a deposit payment and then in installments, as set out in the Statement of Work, with each installment being conditional on Consultant achieving the corresponding Project Milestone, where applicable. On achieving a Project Milestone specified in the applicable Statement of Work in respect of which an installment is due, Consultant shall issue invoices to Client for the fees that are then payable, together with a detailed breakdown of any expenses incurred in accordance with 8.5, where applicable.

8.4 In the event this Agreement or any Statement of Work is terminated by Client prior to the completion of the Services pursuant to the applicable Statement of Work, but where Consultant has partially performed the Services, Consultant shall be entitled to pro-rata payment of Fees to the date of the termination of the Agreement, provided that there has been no breach of contract on the part of Consultant or Client. If Client terminates pre-paid Subscription-Based Services under this Agreement without cause, Consultant shall keep pre-paid Fees. Alternatively, Consultant will recalculate its fees based on standard hourly rates, and Client shall pay any outstanding balance based on such recalculation within 5 (five) business days from the date of the termination of the Agreement.

8.5 Client agrees to reimburse Consultant for all actual, documented, and reasonable travel and out-of-pocket expenses incurred by Consultant in connection with the performance of the Services that have been requested in writing by Client prior to performing the Services and approved in advance in writing by Client.

8.6 The Parties agree that after the initial 12 months of the Term, for Services provided on a time and materials basis, Consultant may increase its standard fee rates specified in the applicable Statement of Work upon written notice to Client; provided, that:

(a) Consultant provides Client written notice of such increase at least 30 days prior to the effective date of such increase;

(b) such increases occur no more frequently than once per contract year of the Term.

8.7 Consultant shall issue invoices to Client only in accordance with the terms of this Section, and Client shall pay all properly invoiced amounts due to Consultant upon receipt, except for any amounts disputed by Client in good faith. All payments hereunder shall be in U.S. dollars and made as per payment instructions contained in the applicable invoice.

8.8 Any overdue invoices for more than 5 (five) business days will be subject to interest charge. Interest payable on any overdue amounts under this Agreement will be charged at a rate of 5% per annum or at the maximum rate enforceable under applicable law, whichever is lower.

8.9 Client shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Client hereunder. Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the Services are for the Client’s account, and Client hereby agrees to pay such taxes; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Consultant’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

9. Intellectual Property Rights and Ownership: The client shall become the owner of the intellectual property solely in accordance with this provision, PROVIDED THAT full payment has been received.

9.1 Except as set forth in 9.3, 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. Consultant agrees, and will cause its Consultant Personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables do not constitute a “work made for hire”, Consultant hereby irrevocably assigns, and shall cause the Consultant Personnel 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 Consultant shall cause the Consultant Personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such Consultant Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.

9.2 Upon the reasonable request of Client, Consultant shall, and shall cause the Consultant 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.

9.3 Consultant 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. Consultant hereby grants Client a limited, irrevocable, perpetual, fully paid-up, royalty-free, non-transferable (except in accordance with 16.6), non-sublicenseable, worldwide license to 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 Consultant.

9.4 Client and its licensors are, and 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. Consultant 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.

10. Confidential Information.

10.1 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, however, that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates, and their officers, employees, consultants, and legal advisors who have a “need to know”, who have been apprised of this restriction, and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this 10;

(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 immediately notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party.

10.2 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.

10.3 Nothing in this Agreement shall prevent either party from using any general methodologies or know-how contained in the unaided memory of such party’s personnel or those of its Affiliates developed or disclosed under this Agreement, provided that in doing so it is not in breach of its obligations of confidentiality under this Section or using any Intellectual Property Rights of the other party or any of its Affiliates.

11. Representations and Warranties.

11.1 Each party represents and warrants to the other party that:

(a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization, or chartering;

(b) it has the full right, power, and authority 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.

11.2 Consultant 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 best 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 and liens of any kind;

(d) (i) to Consultant’s knowledge none of the Services, Deliverables, and Client’s use thereof infringe or will infringe any Intellectual Property Right/registered or issued patent, copyright or trademark of any third party arising under the Law of Ontario, and, (ii) as of the date hereof, there are no pending or, to Consultant’s knowledge, threatened claims, litigation, or other proceedings pending against Consultant 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 (x) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to Consultant, (y) use of the Deliverables in combination with any materials or equipment not supplied or specified by Consultant, if the infringement would have been avoided by the use of the Deliverables not so combined, and (z) any modifications or changes made to the Deliverables by or on behalf of any Person other than Consultant. Consultant’s sole liability and Client’s sole and exclusive remedy for Consultant’s breach of this 11.2(d) are Consultant’s obligations under 12.2;

(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 for a period of 30 days after delivery to Client. In the event of Consultant’s breach of the foregoing warranty, Consultant’s sole and exclusive obligation and liability and Client’s sole and exclusive remedy shall be as follows:

Consultant shall use reasonable efforts to cure such breach; provided, that if Consultant cannot cure such breach within a reasonable time (but no more than 30 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 16.3.
In the event the Agreement is terminated in accordance with this 11.2(e), Consultant shall within 10 (ten) business days after the effective date of termination, refund to Client any fees paid by the Client as of the date of termination for such Service or Deliverable, less a deduction equal to the fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis.
The foregoing remedy shall not be available unless Client provides written notice of such breach within 5 (five) business days after delivery of such Service or Deliverable to Client or with respect to changes made by any Person other than Consultant or at Consultant’s direction.

11.3 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 11, (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) CONSULTANT SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

12. Indemnification.

12.1 Consultant shall defend, indemnify, and hold harmless Client and its officers, directors, employees, agents, successors, and permitted assigns (each, a “Client Indemnitee”) from and against all Losses awarded against a Client Indemnitee in a final judgment arising out of or resulting from any third-party claim, suit, action, or proceeding (each, an “Action”) arising out of or resulting from:

(a) bodily injury, death of any person, or damage to real or tangible, personal property resulting from the willful, fraudulent, or grossly negligent acts or omissions of Consultant or Consultant Personnel; and

(b) Consultant’s material breach of any representation, warranty, or obligation of Consultant set forth in this Agreement/in Section 11.1 or Section 11.2 of this Agreement.

12.2 Consultant shall defend, indemnify, and hold harmless the Client Indemnitees from and against all Losses awarded against a Client 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 Ontario; provided, however, that Consultant shall have no obligations under this 12.2 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 Consultant;

(b) use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Consultant 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 Consultant or Consultant Personnel.

12.3 Client shall defend, indemnify, and hold harmless Consultant and Consultant’s Affiliates and its/their officers, directors, employees, agents, successors, and permitted assigns from and against all Losses awarded against Consultant in a final judgment arising out of or resulting from any third-party Action arising out of or resulting from:

(a) bodily injury, death of any person, or damage to real or tangible, personal property resulting from the grossly negligent or willful acts or omissions of Client; and

(b) Client’s material breach of any [representation, warranty, or obligation of Client in this Agreement/representation or warranty set forth in 11.1 of this Agreement.

12.4 The party seeking indemnification hereunder shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of such Action 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 Action 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 12.4 shall not relieve the indemnifying party of its obligations under this 12.4 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.

12.5 Notwithstanding anything to the contrary in this Agreement, the indemnifying party is not obligated to indemnify, hold harmless, or defend the indemnified party against any claim (whether direct or indirect) to the extent such claim or corresponding losses arise out of or result from, in whole or in part, the indemnified party’s:

(a) Gross negligence or more culpable act or omission (including recklessness or willful misconduct); or

(b)Bad faith failure to materially comply with any of its material obligations set forth in this Agreement.

13. Limitation of Liability

13.1 EXCEPT AS OTHERWISE PROVIDED IN 13.4, 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, EXEMPLARY, SPECIAL, 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.

13.2 EXCEPT AS OTHERWISE PROVIDED IN 13.4, IN NO EVENT WILL EITHER PARTY’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 1 (ONE) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CONSULTANT PURSUANT TO THE APPLICABLE STATEMENT OF WORK.

13.3 DUE TO SYSTEM LIMITATIONS, NOT ALL SERVICES UNDER THIS AGREEMENT CAN BE PERFORMED BY USING A TESTING ENVIRONMENT (SUCH AS SANDBOX IN ZOHO, FOR EXAMPLE). AS A RESULT, CONSULTANT MAY BE REQUIRED TO PERFORM WORK ON CLIENT’S LIVE SYSTEMS. IN NO EVENT WILL CONSULTANT BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF DATA, USE, REVENUE, OR PROFIT OR FOR ANY CONSEQUENTIAL INCIDENTAL, IDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES ARISING FROM PERFORMANCE OF SERVICES UNDER THIS AGREEMENT TO THE EXTENT THEY ARE A RESULT OF SYSTEM LIMITATIONS.

13.4 The exclusions and limitations in 13.1 and 13.2 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 9 (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 10 (Confidentiality);

(d) damages or other liabilities arising out of or relating to a party’s gross negligence, willful misconduct, or intentional acts;

(e) death or bodily injury or damage to real or tangible personal property resulting from a party’s negligent acts or omissions;
(f) damages or liabilities to the extent covered by a party’s insurance; and

(g) a party’s obligation to pay attorneys’ fees and court costs in accordance with 16.12.

14. Non-Solicitation.

14.1 During the Term of this Agreement and for a period of 24 months thereafter, neither party shall, directly or indirectly, in any manner solicit or induce for employment any person who performed any work under this Agreement who is then in the employ of the other party. A general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement for the purposes of this 14.1, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this 14.1.

14.2 If either party breaches 14.1, the breaching party shall, on demand, pay to the non-breaching party a sum equal to one year’s basic salary or the annual fee that was payable by the claiming party to that employee, worker, or independent contractor plus the recruitment costs incurred by the non-breaching party in replacing such person.

15. Force Majeure.

15.1 No party shall be liable or responsible to the other party, or 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 impacted party’s (“Impacted Party”) reasonable control, including without limitation the following force majeure events (“Force Majeure Events”):

(a) acts of God;

(b) flood, fire, earthquake, other potential disaster(s) or catastrophe(s), such as epidemics, or explosion;

(d) government order, law, or actions;

(e) embargoes or blockades in effect on or after the date of this Agreement; and

(f) national or regional emergency; and

(g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and

(h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials. The Impacted Party shall give notice within 5 (five) business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue.

15.2 During the Force Majeure Event, the non-affected party may similarly suspend its performance obligations until such time as the affected party resumes performance.

15.3 The affected party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized and shall resume performance of its obligations as soon as reasonably practicable after the removal of the cause.

16. Miscellaneous.

16.1 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.

16.2 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.

16.3 All notices, requests, consents, claims, demands, waivers, changes to the Statement of Work, 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 e-mail if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.

16.4 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.

16.5 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.

16.6 Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, including by operation of law, change of control, or merger, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, that, upon prior written notice to the other party, either party 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 merger, reorganization, consolidation, or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

16.7 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.

16.8 The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

16.9 This Agreement may be amended, modified, or supplemented only 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.

16.10 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. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

16.11 Governing Law. This Agreement shall be governed exclusively by the laws of the Province of Ontario and the laws of Canada, applicable therein, and the parties irrevocably and exclusively attorn to the jurisdiction of the courts of Ontario and agree that any proceeding brought in respect to this Agreement will be brought in such of those courts as appropriate.

16.12 Submission to Jurisdiction. This Agreement shall be governed exclusively by the laws of the Province of Ontario and the laws of Canada, applicable therein, and the parties irrevocably and exclusively attorn to the jurisdiction of the courts of Ontario and agree that any proceeding brought in respect to this Agreement will be brought in such of those courts as appropriate.
In the event that any provision herein or part thereof shall be deemed void or invalid by a court of competent jurisdiction, the remaining provisions or parts thereof shall be and remain in full force and effect.

16.13 Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
If any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.