Master Services Agreement

Definitions

The following terms shall have the following meanings. All capitalized terms not otherwise set out in this section shall have the meaning as set out in the section of this Agreement in which they are defined.

1. “Affiliate” means, with respect to any party to this Agreement, any person, partnership, joint venture, company, corporation or other entity which directly or indirectly controls, is controlled by, or is under common control with such party where “control” (or variants of it) means the ability to direct the affairs of another by means of ownership, contract or otherwise.
2. “Business Day” means any day except Saturdays, Sundays or a statutory holiday in the jurisdiction where the Company has its head office and the last two weeks of December.
3. “Change Order” has the meaning given to the term in Section 2(c).
4. “Deliverable” means a deliverable explicitly listed under an SOW or Change Order
5. “Fees” means the fees payable by the Client to Company and all applicable duties, levies, taxes, or similar governmental assessments of any nature, including but not limited to value added, goods and services, sales and use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction, if any.
6. “Intellectual Property” means all systems, applications, software code (in any form, including source code, end points, executable or object code), methodology, original works of authorship, algorithms, tool-kits, technology, widgets, formulae, programs, concepts, work-arounds, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.
7. “Intellectual Property Rights” means all: (a) copyrights, (b) moral rights, (c) rights associated with works of authorship, (d) trademark rights, (e) trade name rights, (f) trade secret rights, (g) patent and industrial property rights (whether registered or not), and (h) other proprietary rights, in Intellectual Property.
8. “Services” means the consulting services to be provided by Company to the Client as described in this Agreement, and any related SOW(s) and includes any resulting Deliverables.
9. “Statement(s) of Work” or “SOW(s)” means any statements of work including any changes and modifications to them, that describe the Services to be provided by Company to the Client.

Services

1. Provision of Services. Company shall provide the Services to the Client in accordance with the terms of this Agreement and the applicable SOWs.
2. SOWs. If there is a conflict between the terms of a SOW and this Agreement, this Agreement shall prevail unless explicitly overridden with a cross-reference to this provision. For conflicts related to indemnification, Intellectual Property, limitations of liability, confidentiality, the terms of this Agreement will always prevail for the purpose of that conflict.
3. Change Orders. In the event either Company or the Client requires a material change to the SOW, the party requesting such change will submit it in writing to the other party and will provide the other party with a reasonable opportunity to assess the impact of such changes. If the parties agree to such changes, such acceptance will be evidenced in writing by way of a mutually executed change order (“Change Order”) or by secured electronic means between Client and Company, including but not limited to email, and such changes will be incorporated into the SOW. Neither party will be required to agree to any changes that materially change the Services or have a material impact on the business of the party. The Change Order is governed by the terms of this Agreement
4. Location and Travel. The Client shall reimburse Company for reasonable air travel, hotels, meals on a per diem basis, ground transportation and other business-related expenses incurred by Company in performing the Services as contemplated in a SOW, Change Order.
5. Affiliates and Subcontractors. Company may use its Affiliates and subcontractors to perform the Services. Company shall be liable for the actions and omissions of its Affiliates and subcontractors to the same extent as if such actions and omissions were performed directly by Company. All work performed by Company's Affiliates and subcontractors shall be deemed work performed by Company. Company shall be Client's sole point of contact regarding the Services, including with respect to payment of the Fees.

Payments

1. Payments. Unless otherwise provided in the relevant SOW, Company will invoice the Client monthly and the Client will pay the Fees in respect of such invoice within thirty (30) days of the date of such invoice. All invoices are deemed accepted by the Client within five Business Days after they have been delivered to the Client. Interest shall begin to accrue on unpaid invoices five (5) Business Days after the Company has provided the Client with written notice that the invoice(s) are outstanding. Unpaid invoices will incur interest at a rate of 1.5% per month (18% per annum equivalency), calculated monthly (or if such interest rate is not permitted by applicable law, then the maximum interest rate permitted by applicable law), until such time as they are paid in full. Client shall be responsible for legal fees incurred by Company for the collection of any unpaid invoices.
2. Suspension of Service and Acceleration. If any charge owing by Client under this or any other agreement for services is 30 days past due, Company may, without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, Company will give Client at least 5 days’ prior notice that its account is overdue, in accordance with the “Notice” section below for billing notices, before suspending services to Client.

Warranties

1. Company represents and warrants that: (i) it is duly registered and validly exists under the laws of the jurisdiction in which it is registered; (ii) it has the legal right, authority and full power to enter into the Agreement and to perform its obligations under the Agreement; (iii) it will provide all Services in a professional and workmanlike manner consistent with then-current applicable industry standards and practices, and (iv) it will comply with all laws, regulations and ordinances applicable to its performance under this Agreement.
2. Client represents and warrants that: (i) it is duly registered and validly exists under the laws of the jurisdiction in which it is registered; (ii) it has the legal right, authority and full power to enter into the Agreement and to perform its obligations under the Agreement; (iii) it will use the Services for their intended purpose; (iv) it owns all rights, title, and interest in and to, and sole and exclusive ownership of the documentation and any material claimed by it to be its Intellectual Property and Confidential Information which do not and will not infringe any third party’s Intellectual Property Rights; (v) it will comply with all laws, regulations and ordinances applicable to its performance under this Agreement.
3. Company makes no representations or warranties regarding any third-party software, to anyone, express, implied, or statutory. Third-party software may require the Client to enter into license agreements or pay license fees for the use of their software which are not included in the Fees. Except as expressly set out in a SOW, Company will not be responsible for any fixes, patches, or replacement code that may be required as a result of any software changes made by Third Party software.
4. The warranties provided in this Agreement comprise all the warranties made with respect to the Services. Any other representations, warranties, conditions, or other terms, whether express or implied and including, without limitation, implied warranties, conditions and other terms of merchantability, satisfactory quality or fitness for a particular purpose, are expressly excluded to the extent permitted by applicable law.

Indemnification

1. Each party (the “Indemnitor”) agrees to defend, hold harmless and indemnify the other party (“Indemnitee”), its officers, directors, employees, agents, and subcontractors from and against any and all expenses, loss or liability incurred by the Indemnitee, its officers, directors, employees, agents, or subcontractors as a result of any third-party claims arising from the gross negligence, willful misconduct or fraud of the Indemnitor; or any fines, penalties and levies assessed against Indemnitee by a regulatory authority or governmental entity having authority over Indemnitee as a result of the Indemnitor’s failure to comply with applicable law in the performance of its obligations under the Agreement.
2. Company agrees to defend, hold harmless and indemnify the Client, its officers, directors, employees, agents, and subcontractors from and against any and all expenses, loss or liability incurred by them arising as a result of any claim that Company Intellectual Property infringes upon or violates any Intellectual Property Rights of any third party.
3. If Company believes that the Company Intellectual Property may be subject to any claim of infringement, and if Client’s use of the Company Intellectual Property is held to infringe and its use is enjoined, then Company will, at Company’s own expense and option: (i) procure for Client the right to continue using the Company Intellectual Property; or (ii) replace same with non-infringing Intellectual Property; or (iii) modify the Company Intellectual Property so that it becomes non-infringing. If none of the foregoing is available on terms that are commercially reasonable for Company, then Company may terminate Client’s rights to access and use the Company Intellectual Property that requires the infringing Intellectual Property. Company has no obligation with respect to any actual or claimed infringement if the infringement is solely caused by Client data, use of the Services other than as specified in any documentation provided by Company, or combination of the Services with any products, software, services, data or other materials not provided by, required by, or approved by Company, unless such use is necessary in order to use the Services.
4. The foregoing indemnification obligations of the Indemnitor are conditional upon the Indemnitee providing the Indemnitor with prompt written notice of any such claim or action. Any failure to provide such notice shall only relieve the Indemnitor of its indemnification obligations under this Agreement to the extent the Indemnitor can demonstrate actual, material prejudice to its ability to mount a defense as a result of such failure. The Indemnitor shall have sole control over the defence of any such claim or action and the Indemnitee shall cooperate in such defence. The Indemnitor shall obtain the Indemnitee’s prior written consent, which consent shall not be unreasonably withheld or delayed, for any settlement or compromise of any claim that does not include the unconditional release of the Indemnitee from the indemnified liability hereunder or requires any specific performance, non-pecuniary remedy or for the payment of any amount by the Indemnitee.

Limitation of Liability

1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOODWILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, OR LOSS OF REVENUE OR PROFIT, RESULTING FROM THE PROVISION OF OR RELIANCE UPON THE SERVICES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.
2. SUBJECT TO APPLICABLE LAW, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, COMPANY’S AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED AMOUNTS PAID BY THE CLIENT TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE CLAIM AROSE. EXCEPT AS SET FORTH UNDER APPLICABLE LAW, DAMAGES SET FORTH IN THIS SECTION 6.2 ARE THE PARTIES’ SOLE EXCLUSIVE MONETARY REMEDY AND THE SOLE AND EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT ANY OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FOR THE AVOIDANCE OF DOUBT, THE PARTIES MAY NOT LIMIT THEIR LIABILITY WHERE PREVENTED FROM DOING SO BY APPLICABLE LAW.

Intellectual Property

1. Client Intellectual Property. Client does not grant to Company any rights in or to Client’s Intellectual Property, except such licenses as may be required for Company to perform its obligations hereunder.
2. Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information.
3. Client License. Upon Client’s payment of Fees due under an applicable SOW or Change Order, Company grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for its internal business purposes associated with its Salesforce Instance developed by Company for Customer, including Deliverables, under this Agreement (“Contract Property”).

Confidential Information

1. For the purposes of this Agreement, “Confidential Information” means any information that is disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in the course of Company providing the Services to the Client and that a reasonable person would consider to be confidential in the circumstances. Confidential Information includes, but is not limited to, the parties’ business information, customer information, trade secrets, the terms of each SOW, and personal information of the parties’ employees, contractors and customers. Confidential Information does not include any information that is disclosed by one party to another party if that information: (a) is at the time of disclosure in the possession of the Receiving Party or any of its Affiliates and was obtained without an obligation of confidence; (b) is independently developed by the Receiving Party or any of its Affiliates without any use of or reference to the Confidential Information; (c) is or becomes publicly available without the Receiving Party’s breach of any obligation of confidence; (d) is acquired by the Receiving Party from a third party who provided the information without breaching any express or implied obligations or duties to the Disclosing Party; or (e) is intentionally released for disclosure by the Disclosing Party or with the Disclosing Party’s prior written consent.
2. Each of Company and the Client agree with the other that it shall:
   1. take all reasonable steps to maintain the confidentiality of the other party’s Confidential Information;
   2. not copy the Confidential Information except as may reasonably be required by Company in the provision of the Services;
   3. not use the Confidential Information for its own purposes;
   4. safeguard all documents containing Confidential Information against theft, damage or access by unauthorized persons;
   5. use the same degree of care with respect to the Confidential Information as it employs with respect to its own proprietary or confidential information of like importance; and
   6. except as required by law or a valid court order, and subject to the Receiving Party informing the Disclosing Party of such legal requirement, only disclose such Confidential Information to those officers, directors, officers, employees, agents, and subcontractors (“Receiving Party’s Personnel”) who need to know in order to perform their obligations under this Agreement. The Receiving Party will ensure that the Receiving Party’s Personnel who need to know the Confidential Information agree to maintain the confidentiality of such Confidential Information on terms no less stringent than the terms of these herein confidentiality provisions.
   7. Upon termination of the Services, each party will, without undue delay, upon written request from the other party, return to the other party or destroy all Confidential Information of the other party in its possession or control. Notwithstanding anything contained herein to the contrary, Receiving Party shall not be obligated to destroy Confidential Information to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data
3. Cross-Border Storage and Processing. The Client acknowledges that Company and its subcontractors may store, transmit, and process Confidential Information, including personal information, using service providers and infrastructure located outside of Canada, including in the United States. While Confidential Information is held outside of Canada it is subject to the laws of that jurisdiction and may be accessed by the courts, law enforcement, and national security authorities of that jurisdiction without notice to the Client. Company remains accountable for Confidential Information transferred to a third party for processing and shall take reasonable contractual and technical measures to require that any such third party provide a level of protection for Confidential Information comparable to that required under this Agreement and applicable Canadian privacy law.

Term and Termination

1. Either party may terminate this Agreement and any SOW by providing written notice if the other party:
   1. is in material breach of this Agreement (including, without limitation, failure to pay the Fees) and such breach has not been cured within thirty (30) days, or such time period as is mutually agreed upon by the parties, of the provision of notice of such breach to the breaching party; or
   2. is or becomes insolvent or bankrupt, becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law, has a receiver, administrator or manager appointed, makes an assignment for the benefit of creditors or takes the benefit of any applicable law or statute in force for the winding up or liquidation of corporations.

Dispute Resolution

1. Negotiation. If there is a dispute or difference (“Dispute”) between the parties arising out of or in connection with this Agreement, then within five (5) business days of a party notifying the other party in writing of the Dispute, a senior representative from each party shall meet and use all reasonable endeavours acting in good faith to resolve the Dispute by joint discussions.
2. Court proceedings and other relief. A party may not start court proceedings in relation to a Dispute until it has exhausted the procedures in Section 10.a, unless the party seeks injunctive or other interlocutory relief.
3. Continued Performance. Both parties must continue performing their respective obligations and responsibilities under this Agreement while any Dispute is being resolved in accordance with this Section 10, unless and until such obligations are terminated or expire in accordance with the provisions of this Agreement.
4. Equitable Remedies. The Parties agree that monetary damages may be an inadequate remedy for any breach or threatened breach of any provision of this Agreement concerning Confidential Information, Intellectual Property Rights or other matters for which equitable rights may be granted. Accordingly, such provision may be enforced by injunction or other order of a court of competent jurisdiction.

General

1. Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement. The term “this part” when used herein shall mean the entire part, including sections and subsections within that part, unless inconsistent with the context of such use.
2. Survival. The covenants contained in this Agreement under Sections 1 (Definitions), 2 (Services), 3 (Payments), 4 (Warranties), 5(Indemnities), 6 (Limitation of Liability), 7 (Intellectual Property), 8 (Confidential Information), 9 (Term and Termination), 10 (dispute resolution), 11 (General), shall survive the termination of the provision of the Services and the Client hereby acknowledges and agrees that the provisions of and all restrictions contained in this Agreement are reasonable and are necessary for the protection of the parties’ legitimate interests and proprietary rights and are an essential condition of this Agreement.
3. Currency. Except where otherwise expressly provided, all monetary amounts in this Agreement are stated and shall be paid in Canadian currency.
4. Relationship of the Parties. The parties are independent contractors. This Agreement shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of this Agreement. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in this Agreement. A party may make known the relationship between Company and the Client, provided that such party does not disclose any Confidential Information of the other party or proprietary details of the Services.
5. Gender, Plural and Singular. In this Agreement, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive and “including” is not limiting, and modifications to the provisions of this Agreement may be made accordingly as the context requires.
6. Alterations. No alteration or amendment to this Agreement shall take effect unless it is in writing duly executed by each of the parties.
7. Proper Law of Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein, without regard to conflict of law principles, and the parties agree to attorn to the exclusive jurisdiction of British Columbia.
8. Invalidity. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision and any such invalid or unenforceable provision shall be deemed to be severable.
9. Notices. Any notice, payment or other communication required or permitted to be given or served pursuant to this Agreement shall be in writing and shall be delivered personally or by email to the party concerned at the address specified in this Agreement, or to any other address as may from time to time be notified in writing by any of the parties. Any notice, payment or other communication shall be deemed to have been given on the day delivered, if delivered by hand, and within four Business Days following the date of posting, if mailed; provided that if there shall be at the time or within four Business Days of mailing a mail strike, slow-down or other labour dispute that might affect delivery by mail, then the notice, payment or other communication shall be effective only when actually delivered.
10. Force Majeure. Neither party to this Agreement shall be liable for any failure to comply with its obligations under this Agreement if the failure to comply is caused by or results from conditions or causes beyond its reasonable control including, but not limited to: shortage of water, power, pandemic, acts of God, war, terrorism, riots, fire, flood, explosion, governmental controls or regulations, embargoes, wrecks or delays in transportation, labour disputes, civil insurrection, civil or military authority, inability to obtain necessary labour, materials of manufacturing faculties due to such causes or delays of subcontractors or supplies of each party in furnishing materials or supplies due to one or more of the foregoing causes. In an event of a force majeure, each party shall be allowed a reasonable period of time to fulfill the obligations under this Agreement having regard to the applicable circumstances. An event of force majeure shall not relieve the Client of its payment obligations pursuant to this Agreement.
11. Entire Agreement. The provisions of this Agreement, constitute the entire agreement between the parties and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to the subject matter of this Agreement. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.
12. No Strict Construction. The language in all parts of this Agreement shall in all cases be construed as a whole and neither strictly for, nor strictly against, any of the parties to this Agreement.
13. Assignment. Except with written consent of the other party, neither party may assign any of their respective benefits, obligations or liabilities under or in respect of this Agreement, provided, however that: (a) Either may assign this Agreement to an Affiliate of Company, at its sole discretion; and (b) either party may assign this Agreement, in its entirety, in the event of sale of all or substantially all of its assets or a merger or acquisition. No assignment shall relieve the assigning party of any of its obligations hereunder.
14. Enurement. This Agreement shall enure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of this Agreement, their respective heirs, executors, administrators, successors and permitted assigns.
15. Counterparts. This Agreement may be signed by the parties in as many counterparts as may be necessary, each of which so signed shall be deemed to be an original and such counterparts together shall constitute one and the same instrument. This Agreement may be executed and delivered electronically. An executed copy of this Agreement delivered electronically will constitute valid execution and delivery.