Amazing Business Results
Standard Terms and Conditions – Customized Services- Canada
Last updated on Dec 26, 2023
These Standard Terms and Conditions (the “Terms”) shall apply to the Services of Amazing Business Results, Inc., an Ontario Corporation (“ABR”, “Consultant”, “we”, or “us”) and the client (“Client” or “you”) (Consultant and Clients are sometimes referred to as “party” or “parties” in these Terms), when these Terms are expressly referenced in Statement of Work, attachment, Consultant Proposal, schedule, exhibit, or any other document under which such Services are provided to the client from the Consultant, and where these Terms are referenced or incorporated (collectively, such documents are referred to as the “Agreement(s)” throughout these Terms).
Please note that these Terms 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-of-use/ and https://www.amazingbusinessresults.com/canada-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. With respect to any part of the Agreements which are executed prior to the change in the Terms, the old version of the Terms shall continue to apply to the parts of the Agreements so executed, unless agreed otherwise between the parties in writing.
Furthermore, these Terms will apply to the Consultant legal entity mentioned in an Agreement, or referenced in any part of an Agreement exclusively, and no other affiliate, subsidiary, parent or related party of such Consultant legal entity shall be liable or responsible for, or entitled to any obligations, responsibilities or entitlements pursuant to such Agreements, unless stated otherwise explicitly therein.
WHEREAS, Client is of the opinion that Consultant has the necessary qualifications, experience, and abilities to provide services and software products to Client; and Client desires to retain Consultant to provide certain services and software products to Client described in any relevant Agreement,
WHEREAS, Consultant is willing to provide such services and software products to Client, each on the terms and conditions set forth in this Agreement.
WHEREAS, both parties agree that this preamble shall form a binding part of these Terms.
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, intending to be legally bound:
1. Definitions
“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.
“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.
“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 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 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, describing how Consultant proposes to carry out the Services, where applicable, and which also is considered an Agreement, or part of any Agreement hereunder.
“Deliverables” means any specifically identified documents, work product, and other materials that are specified in any Agreement and are provided 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 Canadian Dollar.
“Force Majeure Event” has the meaning set forth in Section 14.
“Initial Term” shall mean the term during which the applicable Statement of Work is in effect.
“Intellectual Property” shall have the meaning described in Clause 8.
“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.
“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, State, 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.
“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.
“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 Section 5.
“Services” mean the software products and other services to be provided by Consultant under any Agreement or Consultant Proposal or Statement of Work, and Consultant’s obligations under such Agreements.
“Statement of Work” or “SOW” means the Statement of Work entered into by the parties which is referenced in any part of an Agreement or Consultant Proposal or separately created Statement of Work. The Parties would enter into additional SOWs, depending on Client’s additional requests for Services to be provided under this Agreement. These Terms shall be treated as a master agreement.
“Term” has the meaning set forth in Section 5.
2. Services
2.1 Consultant shall provide the Services to Client, as described in more detail in the Agreements, in accordance with these Terms.
2.2 Each Statement of Work/Consultant Proposal/binding Agreement shall include the following information, if applicable:
(a) a detailed description of the Services to be provided pursuant to the Agreement, such as, but not limited to:
(b) the date upon which the Services will commence and the term of such Statement of Work;
(c) the names of the Consultant Account Manager and any Key Personnel, where applicable;
(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
(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
Clearly state the content, nature and extent of any Services, along with relevant payment terms, in any part of an Agreement issued hereunder, and perform or provide such Services in a reasonable and workmanlike manner, subject to reasonable industry standards.
4. Client’s Obligations and Testing of Deliverables
4.1 Client shall cooperate with Consultant in all matters relating to the Services as described in any relevant Consultant Proposal, SOW or Agreement.
4.2 The Client shall be solely responsible for uploading any data and information required to utilize the Services, to any software, database or system maintained for, or accessed by the Client through the use of the Services, and the Consultant shall have no liabilities, responsibilities or obligations relating to the same, under any circumstances whatsoever.
4.3 Upon the delivery of any Services or Deliverables, the Client shall be independently responsible for testing any Deliverables, and providing reasonable feedback to the Consultant, with respect to any queries, issues, problems, deficiencies or required modifications related to the Services and Deliverables. If the Client fails to notify the Consultant of any such issues within ten (10) days of the receipt of any Deliverables, such Deliverables and their underlying Services shall be deemed to be accepted unequivocally hereunder. If the Deliverables or Services do not satisfy the acceptance criteria as outlined in each Statement of Work, Client shall provide Consultant with written notice stating any unreasonable deficiencies. Consultant shall have ten (10) business days from the receipt of such notice to correct the unreasonable deficiencies, or explain why such deficiencies are reasonable and acceptable. The Client shall then have ten (10) business days to inspect, test and re- evaluate the work. If the Client fails to notify the Consultant of any further issues associated with revised Deliverables within ten (10) days of the receipt of any such revised Deliverables, such Deliverables and their underlying Services shall be deemed to be accepted unequivocally hereunder. 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 once more as a final remedy, or (2) terminating this Agreement for breach, pursuant to Section 5, provided that the Consultant is entitled to challenge the Client’s termination, and demand full payment in any instance where the Client’s assertion of a breach is deemed unreasonable, in the Consultant’s sole reasonable discretion.
4.4 The Client shall immediately defend, indemnify and hold the Consultant harmless from all costs and expenses they incur as a result of the Client’s failure to uphold their obligations and responsibilities as described hereunder, and such costs include reasonable attorney’s fees and legal expenses.
5. Term and Termination
5.1 Term. This Agreement shall commence on the date specified in any Agreement/SOW and shall continue in force as stated therein.
5.2 Renewal. The SOW or Agreement may renew as described in any relevant SOW, or as agreed in writing by the Parties. Unless stated otherwise in an SOW, all Services provided by the Consultant are governed by these Terms.
5.3 Termination for Convenience. Either party, in its sole discretion, may terminate an Agreement or any Statement of Work, in whole or in part, at any time without cause, pursuant to the terms stated in any applicable Agreement/SOW. The Consultant may terminate any Agreement at will, by providing the Client with at least three (3) months notice in writing, or the equivalent refund of fees paid by the Client for uncompleted Services pursuant to any relevant SOW.
5.4 Termination for Cause. Either party may terminate any Agreement or any SOW, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party:
(a) breaches an Agreement or part of these Terms, 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.
5.5 Effects of Termination or Expiration. Upon expiration or termination of this Agreement a breach by the Client, the Consultant will keep any fees paid for the entire duration of the Term, and the remaining Services and Term due under any Agreement may be canceled and terminated, without liability to the Consultant for any losses, loss of data, damage, expenses or fees incurred by the Client. In the event of the termination of this Agreement for breach by the Consultant, any portion of fees paid by the Client for Services rendered defective by the breach may be refunded to the Client.
5.6 . Survival. The rights and obligations of the parties set forth in this 5.6 and 1, 5.5, 8, 9, 10, 11, 12, 13, and 15, 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.
5.7 Loss of Data. In case of the Termination of this Agreement for any reason, the Client, and not the Consultant, will be responsible for exporting any data they have uploaded or stored using the Services prior to the date of Termination, and the Consultant will not be liable or responsible for any damages, expenses, loss of data or liabilities incurred by the Client relating to the loss of the Client’s data after the date of Termination, for any reason.
6. Change of Scope of Services.
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 15.3 by revising the applicable Statement of Work.
7. Fees and Expenses; Payment Terms.
7.1 In consideration of the provision of the Services by the Consultant and the rights granted to Client under an Agreement, Client shall pay the fees set forth in the applicable Agreement/SOW.
7.2 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, if applicable, installment payments, 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, where applicable.
7.3 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.
7.4 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.
7.5 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 Canadian Dollars and made as per payment instructions contained in the applicable invoice.
7.6 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.
7.7 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.
8. Intellectual Property Rights and Non-Circumvention:
8.1 The Client agrees that all software, source code, add-ons, functionalities, content, user interfaces, text, images, sounds, videos, applications, proprietary information, trademarks, service marks, copyrights and intellectual property of any kind, associated with, or developed through the use of the Services accessed by the Client, and all Intellectual Property Rights included therein, including any Pre-Existing Materials, and derived works (the “Intellectual Property”), shall belong exclusively to the Consultant and their third party licensors. However, the Consultant acknowledges that all Client or third-party data submitted by the Client to the Consultant, or uploaded to any software or database via the Services, as well as any specific customizations, software, work-product or Deliverables created for the Client by way of the Services, shall vest with, and/or remain under the ownership of the Client and their licensors, and will be kept confidential as such by the Consultant (the “Client Intellectual Property”). The Client provides the Consultant with a royalty free, perpetual, unlimited, and worldwide license to use the Client Intellectual Property for the sole purpose of maintaining the Services and Intellectual Property provided by the Consultant.
8.2 The Client agrees that if any licenses or software is provided by any third party licensors of the Consultant, the Client will not, for the duration of the Term of an Agreement and their access to Services, circumvent the Consultant by cancelling their subscription during any relevant trial or other period described in an Agreement, while seeking the software and licenses from such third parties directly, without being liable to the Consultant for the full fees due for the Services as described hereunder, regardless of whether the Client has cancelled any subscription during any applicable trial period.
8.3 Consultant and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Intellectual Property , including all Intellectual Property Rights therein, but excluding any Client Intellectual Property. Consultant hereby grants Client a limited, revocable, royalty-free, non-transferable, non-sublicensable, and worldwide license to any Intellectual Property incorporated in, combined with or otherwise necessary for the use of any Client Intellectual Property, Deliverables and Services, solely to the extent reasonably required in connection with Client’s receipt or use of the Client Intellectual Property, Services and Deliverables. The aforementioned license however, cannot be in any way resold, redistributed, assigned, sublicensed, disclosed, or provided to any other third parties except the Client, without the written consent of the Consultant, and the Client may only use such Intellectual Property for their own use of, and access to the Client Intellectual Property, Deliverables and Services. All other rights in and to the Intellectual Property are expressly reserved by Consultant.
8.4 In the event of the violation of the terms of this Clause by the Client, the Client agrees that they will be immediately liable to the Consultant, on demand, for all liabilities, costs, damages, fees, expenses or royalties incurred or payable to the Consultant, which arise from or are related to the violation or breach of this Clause by the Client, and the remedy of the said breach by the Consultant.
8.5 Payment Default and Access Rights. In the event that the Client fails to make full payment within seven (7) calendar days of the final invoice due date, the Consultant reserves the right, without further notice, to suspend access to, disable, or remove any software, source code, deliverables, functionalities, or services provided to the Client, whether hosted by the Consultant or deployed on the Client’s systems. The Client acknowledges and agrees that: Such suspension or removal does not constitute a breach of this Agreement by the Consultant; The Consultant shall not be liable for any resulting loss of data, business interruption, or damages; Any rights or licenses previously granted to the Client under this Agreement shall be considered revoked until all outstanding payments have been received in full. Reinstatement of access or services shall be made at the sole discretion of the Consultant and may be subject to additional fees, including but not limited to reconnection charges and legal or administrative costs incurred in pursuing payment.
9. Confidential Information.
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, 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 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 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.
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.
9.3 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.
10. Representations and Warranties.
10.1 Each party represents and warrants to the other party that:
10.2 Consultant represents and warrants to Client that:
10.3 EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 10, (A) THE CONSULTANT 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.
10.4 Disclaimers.
a) The Client agrees that the Services are purchased or accessed “as is,” which means that they accept them as listed or described by the Consultant in writing on their SOW or otherwise, and will not hold the Consultant accountable for anything beyond what is specifically listed in terms of the Services specifically or explicitly described to the Client in any such communication or Agreement. The Consultant bears no liability for any costs, injuries to person or property, or damages of any kind, arising from the use or misuse of the Services accessed or purchased by the Client. All such Services are purchased or accessed at the sole risk and discretion of the Client, and in accessing the Services, the Client acknowledges that such Services are accessed or purchased as is, while waiving all claims against the Consultant for any damages arising out of the use or application of any Services provided, except to the extent of the Consultant’s gross negligence or willful misconduct. Once Services are purchased or accessed, there are no refunds permitted, unless the Consultant, in their sole and absolute discretion, deems that a refund is warranted to the Client.
b) Without limiting the foregoing, the Consultant, its subsidiaries, affiliates, licensors, officers, directors, agents, co-branders, partners, suppliers and employees do not warrant that the Services and any software or information provided thereunder are accurate, reliable or correct; that the Services will meet the Client’s requirements; that the Services will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that the Services are free of viruses or other harmful components. Any Services or software downloaded or otherwise obtained through the use of the Services is downloaded at the Client’s own risk and the Client shall be solely responsible for any damage to Client’s computer system or mobile device or loss of data that results from such download or Client’s use of the Services.
c) The Consultant does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through the Services or any hyperlinked website or service, and the Consultant shall not be a party to or in any way monitor any transaction between Client’s and third-party providers of products or services, unless expressly stated otherwise in any Agreement.
d) The Services may become inaccessible, or they may not function properly with Client’s web browser, mobile device, and/or operating system. The Consultant cannot be held liable for any perceived or actual damages arising from the Services’ operations, or use of any Services.
e) Some jurisdictions do not allow the exclusion and limitations of certain implied warranties. The above exclusions may not apply to the Client. The disclaimers and exclusions under these Terms shall not apply to the extent prohibited by applicable law.
11. Indemnification.
The Client agrees to defend, indemnify and hold the Consultant and its subsidiaries, licensors, affiliates, officers, directors, agents, co-branders, partners, contractors, suppliers and employees harmless from and against any and all claims or demands, damages, obligations, losses, liabilities, costs or debt, and expenses, including, but not limited to, legal fees and expenses, arising from:
a) Client’s use of and access to the Services, including any data or information transmitted or received by Client;
b) Client’s violation of these Terms or any Agreement, including, but not limited to, Client’s breach of any of the representations and warranties set forth in these Terms or an Agreement;
c) Client’s violation of any third-party rights, including, but not limited to, any right of privacy or intellectual property rights;
d) Client’s violation of any statutory law, rule, or regulation;
e) any Client content or other content that is submitted from Client’s account, including third party access with Client’s unique username, password or other security measure, if applicable, including, but not limited to, misleading, false, or inaccurate information;
f) Client’s negligence or willful misconduct; or
g) any violation of a relevant/applicable statutory provision by Client or its affiliates, officers, directors, agents, co-branders, partners, suppliers, contractors, and employees to the extent allowed by applicable law.
12. Limitation of Liability
12.1 EXCEPT AS OTHERWISE PROVIDED IN 12.4, 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, EXCEPT TO THE EXTENT THE CLIENT BREACHES THE CONSULTANT’S INTELLECTUAL PROPERTY RIGHTS.
12.2 IN NO EVENT WILL THE CONSULTANT’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 THE AGGREGATE AMOUNTS PAID OR PAYABLE TO CONSULTANT PURSUANT TO THE APPLICABLE AGREEMENTS.
12.3 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. Non-Solicitation
13.1 During the Term of any Agreement/SOW and for a period of 24 months after its termination, the Client shall not, directly or indirectly, in any manner solicit or induce for employment any person who performed any work or provided any Services for them under any Agreement who is then in the employ of the Consultant. 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 13.1, and the hiring of any employee or independent contractor who freely responds thereto shall not be a breach of this 13.1.
13.2 If the Client breaches 13.1, the Client shall, on demand, pay to the Consultant a sum equal to one year’s basic salary or the annual fee that was payable by Consultant to that employee, worker, or independent contractor plus the recruitment costs incurred by the Consultant in replacing such person.
14. Force Majeure.
14.1 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 an Agreement or the Terms, (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;
(c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest;
(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.
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 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.
15. Miscellaneous.
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 and any applicable Agreement.
15.2 The relationship between the parties is that of independent contractors. Nothing contained in these Terms 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, unless stated otherwise in any Agreement.
15.3 All notices, requests, consents, claims, demands, waivers, changes to the Statement of Work/an Agreement, 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.
15.4 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:
(c) to Sections, Schedules, Exhibits, and Statements of Work refer to the Sections of, and Schedules, Exhibits, and Statements of Work attached to any Agreement which references these Terms;
15.5 These Terms, and any Agreement, together with all Schedules, Exhibits, and Statements of Work and any other documents incorporated therein by reference, constitutes the sole and entire agreement of the parties to the Agreement with respect to the subject matter contained therein, 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 any Agreement the following order of precedence shall govern:
(a) first, the Agreement, inclusive of its Exhibits and Schedules;
(b) second, these Terms.
15.6 The Client may not assign, transfer, or delegate any or all of its rights or obligations under these Terms or an Agreement, including by operation of law, change of control, or merger, without the prior written consent of the Consultant. The Consultant may assign an Agreement to an Affiliate or to a successor of all or substantially all of the assets of the Consultant, through merger, reorganization, consolidation, or acquisition, without any consent from the Client. 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. Furthermore, the Client acknowledges and agrees that the Consultant may work with subcontractors in order to perform any Services to be delivered to the Client hereunder, or pursuant to any SOW, with any such Services performed being subject to the terms of the Agreements.
15.7 An Agreement entered into pursuant to these Terms is for the sole benefit of the parties thereto and their respective successors and permitted assigns and nothing herein or therein, 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 these Terms or an Agreement.
15.8 The headings in these Terms are for reference only and shall not affect the interpretation of the Terms.
15.9 An 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 any Agreement or these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms or any 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.
15.10 If any term or provision of these Terms or an Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or an 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 an 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.
15.11 Governing Law and Disputes.
a) All Agreements/SOWs entered into between the parties shall be governed by and construed exclusively in accordance with 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.
b) 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, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
c) 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.