Terms and Conditions

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Client and Consultant, the Client and Consultant agree with each other as follows:

1. Interpretation

1.1 In this Agreement:

“Affiliate” means any Person that, directly or indirectly, controls, or is controlled by, another Person. For purposes of this definition, “control” (including the term “controlled by”), as used with respect to any Person, means the power to direct or cause the direction of management and policies of such Person directly, or indirectly, whether through ownership of voting securities, by contract or otherwise. Direct or indirect ownership of more than 50% of voting securities of a Person shall be deemed to be control of such Person;

“Agreement” means this master service agreement and all Schedules attached hereto;

“Applicable Laws” means all applicable laws, by-laws, rules, regulations, ordinances, codes, orders, decrees, judgments, rulings, awards or directives of or made by any and all legislative, regulatory, administrative, judicial or other public authorities or agencies of competent jurisdiction whatsoever, including all applicable principals of common law and equity;

“Business Day” means any day, other than a Saturday or Sunday or statutory holidays in the Province of British Columbia;

“Client Content” means Client’s complete product database, relevant copy concerning policies, services, information regarding products and product design, photographs, storyboards, copy, press material and any other Client assets described in the applicable SOW or provided to Consultant by Client.

“Confidential Information” means all information owned, possessed or controlled by a Party including, without limitation, all information related to developments, inventions, enhancements, financial, scientific, technical, manufacturing, process, know-how and marketing information, all names of or lists of customers and suppliers and such other information that would reasonably be considered confidential or proprietary by a Party howsoever received by the receiving Party, before, on or after the Effective Date, from, in whatever form (whether oral, written, machine readable or otherwise), provided, however, that the phrase “Confidential Information” shall not include information which:

(a) was in the public domain prior to the date of receipt by the receiving Party;
(b) becomes part of the public domain by publication or otherwise, not due to any unauthorized act or omission of the receiving Party and its respective directors, officers, employees and consultants;
(c) after disclosure, is lawfully received by the receiving Party on a non-confidential basis from another Person (other than the disclosing Party and its respective directors, officers, employees, consultants, contractors, suppliers, customers, agents and advisors) who is lawfully in possession of such Confidential Information and such other Person was not restricted from disclosing the said information to the receiving Party;
(d) was independently developed by the receiving Party without use of Confidential Information; and
(e) the receiving Party is required by law to disclose.

“Contract Price” means the price payable to Consultant by the Client as defined in Scope of Work.

“Intellectual Property” means all intangible, intellectual, and proprietary rights whether or not registered or registrable, howsoever created and wherever located, including: (i) any copyright, including but not limited to copyright in text, code and software of any kind, all graphic, photographic, pictorial, or sculptural works, musical works, sound recordings, dramatic works, music videos, motion pictures, and other audio-visual works and multi-media works; (ii) any patent, trademark, trade name, trade secrets or trade dress, and (iii) database rights.

“Party” or “Parties” means the Client and Consultant;

“Person” includes an individual, a partnership, a corporation, a company, a trust, an unincorporated organization, a union, a government or any department or agency thereof;

“Personal Information” means information about an identifiable individual.

“Pre-Existing Materials” means Intellectual Property of any business information, software, processes or procedures or any other materials used, created or developed by Consultant in the general conduct of its business or prior to or independently from the Work, including, without limitation, designs, formats, routines, proprietary research tools, databases of information and specialized database applications, software applications, computer programming and/or coding, and all enhancements thereto. Pre-Existing Materials shall also include those materials that are delivered to the Client by Consultant under this Agreement that Consultant develops, uses or otherwise integrates into the Work, excluding Client Content and Third Party Materials, which are: (i) generic in nature (i.e., are not unique to the Client); (ii) can be used generally in the consulting industry to perform functions common to such services; and (iii) do not provide a competitive advantage to Client or any competing organization in Client’s industry. Pre-Existing Materials shall not include Client Content and Third-Party Materials.

“Term” means the term of this Agreement as set out in Article 2; and

“Work” means the performance of all services that the Client may order from Consultant from time to time during the Term, and as more particularly described in Scope of Work.

1.2 Other capitalized words and phrases as used in this Agreement have the meanings assigned to them by this Agreement.

1.3 The division of this Agreement by articles, sections, paragraphs or other subdivisions and the use of headings and titles are for convenience only and shall not be considered in interpreting this Agreement.

1.4 The words “hereto”, “hereby”, “herein”, “hereunder” and similar expressions (unless the context otherwise requires) refers to this Agreement and not any particular article, section, paragraph or other subdivision of this Agreement.

1.5 The words “includes”, “including” and similar references are intended to be all inclusive without limitation or restriction.

1.6 a reference to any agreement is a reference to such agreement as amended, restated, supplemented, replaced and/or modified from time to time;

1.7 a reference to a statute or a section of a statute shall include and shall be deemed to be a reference to such statute or section and to the regulations made pursuant thereto, with all amendments made thereto and in force at the relevant time, and to any statute, section of a statute or regulation that may be passed which has the effect of supplementing or superseding the statute or section so referred to or the regulations made pursuant thereto;

1.8 Unless the context otherwise requires, any term used in this Agreement which imports the singular or the plural shall include both the singular and the plural and any term used in this Agreement referring to any particular gender shall include both genders.

1.9 the Client may from time to time request the Work for and on behalf of any Affiliate and, in such case, references to the Client in this Agreement shall include such Affiliate.

1.10 In the event of any ambiguity, conflict or inconsistency among or between this Agreement and a SOW, the terms of this Agreement shall prevail.

1.11 Where any payment or calculation is to be made, or any other action is to be taken, on or as of a day that is not a Business Day, that payment or calculation is to be made, or that other action is to be taken, as applicable, on or as of the next following Business Day, unless such next following Business Day falls in the next calendar month in which event the payment or calculation is to be made, or that other action is to be taken, as applicable, on or as of the immediately preceding Business Day.

2. Term and Termination

2.1. The term of this Agreement shall be for one (1) year, (the “Term”) from the Effective Date, subject to earlier termination as provided herein.

2.2. Either Party may terminate this Agreement for any reason whatsoever upon providing the other Party with thirty (30) days prior written notice.

2.3. Either Party may terminate this Agreement at any time, upon providing written notice to the other Party, if:

(a) a Party defaults on its payment obligations and fails to cure such default within ten (10) Business Days following receipt of written notice thereof from the other Party;
(b) a Party defaults in the performance of any of its material obligations hereunder (other than payment obligations) and fails to cure such default within thirty (30) days following receipt of written notice thereof from the other Party;
(c) a Party ceases to carry on business at any time;
(d) a Party becomes insolvent or makes an assignment for the benefit of creditors, is adjudicated bankrupt, institutes any proceedings under any law for relief of debtors or for the appointment of a receiver, trustee or liquidator, files a voluntary petition in bankruptcy for a reorganization or for an adjudication of the Party as an insolvent or a bankrupt; or

2.4. If this Agreement is terminated pursuant to this Section 2.3 while any Work is in progress, Consultant shall immediately cease the Work. Within thirty (30) days of such termination, the Client shall pay (i) Consultant for all Work provided by Consultant and (ii) except in the case of the Client terminating this Agreement pursuant to Section 2.3(a), all reasonable costs and disbursements incurred by Consultant directly resulting from terminated Work up to the time of termination.

3. Retainer and Performance of the Work

3.1. At any time during the Term the Client may request that Consultant perform and/or provide the Work. Consultant may accept such request by response to the Client. Neither Party is obligated to enter into the Work.

3.2. Consultant may subcontract part or parts of the Work, provided that any subcontract shall not relieve Consultant from responsibility for the conduct and performance of the Work, provided further that any subcontracting shall be disclosed to, and subject to the approval of, the Client, which shall not be unreasonably withheld.

3.3. If the Client at any time requests the Work from Consultant and Consultant accepts such Work, Consultant represents and warrants to perform and/or provide all such Work to the Client in an efficient, expeditious, skillful, professional and safe manner in accordance with all Applicable Laws and this Agreement.

4. Changes

4.1. The Client may, at any time without invalidating this Agreement, in writing request Consultant to make any changes to the Work, by altering, adding to, or deducting from the Work (a “Change”), with adjustments, if any, to the Contract Price or the time for the performance of the Work or both. When the adjustments, if any, to the Contract Price or the time for the performance of the Work or both are agreed by Consultant and the Client, Consultant will issue a written approval (a “Change Order”) setting out:

(a) description of the Work covered by the Change;
(b) the price or method of valuation for such Work;
(c) the total adjustment, if any, to the Contract Price (excluding GST) on account of the Change; and
(d) the net effect on the time for the performance of the Work on account of the Change.

4.2. Consultant shall not be obligated to perform a Change until such adjustments to the Contract Price or time for performance of the Work are agreed upon by the Parties and a Change Order is issued by Consultant.

5. Intellectual Property

5.1. Except as otherwise set forth in this Agreement or mutually agreed to in writing, and subject to payment in full of all applicable sums, all rights, title and interest in deliverables commissioned by the Client (“Deliverables”) shall be hereby irrevocably assigned to Client. Notwithstanding the foregoing, if Client fails to pay any undisputed invoices, then all rights in and to the specific Deliverables not paid for by Client, are hereby granted to Client as a revocable license which will be converted to a full assignment of all rights upon payment of the outstanding amounts due Consultant.

5.2. Notwithstanding anything set forth in this Agreement to the contrary, the Client acknowledges and agrees that all Pre-Existing Materials shall remain the sole and exclusive property of Consultant. An example of a pre-existing material being a methodology or template created previously. To the extent any such Pre-Existing Materials are integrated into the Deliverables, Consultant hereby grants a fully paid-up, perpetual, non-exclusive, non-transferable license to Client to use (without modification) the applicable Pre-Existing Materials solely in connection with the Deliverables and for the benefit of Client. Consultant shall own all modifications, improvements or enhancements to the Pre-Existing Materials and Client may not reverse engineer, decompile, modify, create derivative works, or otherwise exploit Pre-Existing Materials alone or apart from the Deliverables commissioned by Client.

5.3. Further, any Deliverables (except for any Client Content therein) (i) prepared or proposed by Consultant, but not produced published and/or broadcast within the term of the applicable Work, and/or (ii) prepared or proposed by Consultant and rejected by Client, shall remain the property of Consultant (the “Unproduced Deliverables”). Consultant shall have the right to use the Unproduced Deliverables without limitation; provided, however, that, such uses shall not involve the release of any of Client’s Confidential Information.

5.4. Client retains all right, title, and interest in and to any of its Client Content. Client hereby grants to Consultant the right and limited license to use such Client Content solely as necessary to provide the Work. For clarification purposes, Consultant shall acquire no rights of ownership in intellectual property rights subsisting in Client Content and Consultant shall only use such Client Content in connection with the purposes set forth herein and, to the extent provided in writing or any directions of Client.

5.5. Notwithstanding anything set forth in this Agreement to the contrary, Client acknowledges and agrees that all materials, rights, and intellectual property owned and/or controlled by third parties (including, third party owned and/or controlled audio-visual materials, photography, software or code (including, without limitation, open source software)) (collectively, “Third Party Materials”) shall remain the sole and exclusive property of such third parties. To the extent Consultant incorporates any such Third Party Materials into the Deliverables, Consultant shall obtain (at Client’s sole cost and expense) with respect to such Third Party Materials, all rights necessary for Client to use same as part of the Deliverables in accordance with the specific use and clearance parameters mutually agreed to by the Parties in the applicable Work and shall receive under the applicable third party license only such rights and warranties as are offered by such third party licensor who shall be solely responsible to Client for such Third Party Materials.

5.6. Notwithstanding any confidentiality restrictions herein, the Client grants to Consultant a non-exclusive, perpetual, worldwide and transferable license to use, copy, modify, distribute, format, disclose, store, archive, index or otherwise process, any information, content or Data provided to Consultant by the Client (the “Data”) without any further consent, notice and/or compensation to the Client for the sole purpose of supporting and developing Consultant’ business and systems, provided that when doing so, Consultant shall only disclose the Data in an anonymized and aggregated way.

5.7. Consultant shall indemnify the Client for any claim that the Deliverable infringes a third party’s intellectual property rights provided the Client giving prompt written notice of any such claim made against it to Consultant, all such information available to the Client and such assistance as reasonably required by Consultant in respect to such claim and the Client granting to Consultant exclusive control of the settlement and litigation of any such suit, proceeding or claim. To avoid infringement or if the Client’s use of the Deliverable is enjoined in a claim, Consultant shall at its option (a) procure for the Client the right to continue using the Deliverable (b) replace same with an equivalent non-infringing product, (c) modify the Deliverable so it becomes non-infringing but equivalent or (d) remove the Deliverable and refund the corresponding Contract Value of the Deliverable, including all reasonable costs and disbursements incurred by the Client.

6. Invoicing and Payments

6.1. Consultant shall submit invoices for all Work performed and/or provided at the close of each calendar month. Invoices may be submitted by email or delivered to the address provided by the Client.

6.2. All invoices delivered shall be payable within thirty (30) days of the invoice date. If payment of an invoice is not received within thirty (30) days of the invoice date, the invoice shall be overdue and interest at the rate of [fifteen percent (15%)] per annum, calculated monthly, will accrue on all outstanding amounts. The charging of interest shall not be construed as obligating Consultant to grant any extension of time for payment to the Client. Consultant’ costs and expenses incurred in respect of legal proceedings to recover any monies due hereunder, and the enforcement of any of Consultant’ rights, including, without limitation, legal costs on a solicitor-client basis, shall be paid by the Client to Consultant immediately upon demand.

6.3. If the terms of any invoice do not conform with the Work or the Client disputes any invoice in whole or in part, the Client shall promptly notify Consultant of the dispute in writing and shall be liable for payment of the undisputed portion of the invoice. The Client and Consultant shall endeavor to settle and adjust any disputed amounts forthwith.

6.4. The hourly rates payable under this Agreement shall increase annually by five percent (5%), effective on the first day of each calendar year, unless otherwise agreed in writing by both parties.

7. Limitation of Liability

7.1. Each of Client and Consultant acknowledges that the fees for the Work reflect the allocation of risk set forth in this Agreement. Except in the case where a court of competent jurisdiction has determined that Consultant is liable for gross negligence or willful misconduct, the liability of Consultant, whether in contract, tort or otherwise, to the Client shall not exceed the Contract Price received by Consultant from the Client for the applicable Work in respect of which such liability relates.

7.2. In no event shall Consultant, its directors, officer, employees, agents, contractors, licensees or assigns be liable to the Client for special, indirect, consequential or incidental losses or damages of any kind or nature whatsoever, or other costs, charges, penalties or liquidated damages, regardless of whether arising from breach of contract, warranty, tort, strict liability or otherwise, even if advised of the possibility of such loss or damage or if such loss or damage could have been reasonably foreseen, including without limitation, damages for loss of use or production, loss of revenue or profit, loss of data, loss of business information, business interruption, claims of third parties or any other pecuniary loss arising out of this Agreement. Should there be loss of data and loss of business information due to the gross negligence or willful misconduct of Consultant, Consultant shall use reasonable efforts to recover the same at no cost to the Client.

8. Confidentiality

8.1. During the Term and for two (2) years following the termination of this Agreement, unless authorized in writing by the other Party, each Party shall keep as confidential and shall not divulge or disclose or make any use of any of the Client's Confidential Information except with respect to the performance of the Work and as provided in this Article 8.

8.2. In the event a Party becomes legally compelled to disclose any Confidential Information of the other Party, such Party, if permitted by Applicable Laws, will provide the other Party with prompt written notice so that the other Party will be afforded the opportunity to exhaust all legal remedies to maintain the confidentiality of the Confidential Information. Such Party will disclose only that portion of the Confidential Information which it is legally required to disclose.

8.3. Each Party may disclose Confidential Information to each of its directors, officers, employees, subcontractors and agents (the “Representatives”) who have a need to know with respect to the performance of the Work and are subject to confidentiality provisions at least as stringent as those found herein. Each Party shall be responsible for any unauthorized disclosure or use of the Confidential Information by its Representatives.

8.4. Upon the termination of this Agreement, all Confidential Information of the disclosing Party shall be returned or destroyed by the receiving Party, provided that (a) the receiving Party may retain working papers and copies of the Confidential Information to the extent consistent with good professional practice for legal and archival purposes, and (b) with regard to Confidential Information in electronic form, the receiving Party shall not be required to review back-up tapes and destroy the same or take other extraordinary steps to delete Confidential Information from the receiving Party’s information management or email system, rather such Confidential Information kept under items (a) and (b) above shall be held by the receiving Party and kept subject to the terms of this Agreement.

9. Compliance with Law

9.1. Each Party shall comply, and cause each of its Representatives to comply, with all Applicable Laws, including laws related to the collection and use of Personal Information, with respect to this Agreement and with respect to the performance and/or provision of the Work.

10. Force Majeure

10.1. Any delay or failure by a Party to perform its obligations under this Agreement shall be excused if, and to the extent, that the delay or failures caused by an event or occurrence beyond the reasonable control of the Party and without its fault or negligence, such as, by way of example and not by way of limitation, natural disasters, action by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, or court injunction or order (a “Force Majeure”), and such obligations of such Party shall be suspended during the period of Force Majeure. For the avoidance, an inability to pay money owing shall not constitute a Force Majeure.

10.2. The Party suffering a Force Majeure shall advise the other Party immediately of its inability to meet its obligations, specifying the cause of the Force Majeure, and shall immediately advise the other Party when the Force Majeure occurrence ceases.

11. Governing Law and Disputes

11.1. This Agreement shall be governed by the laws in force from time to time in the Province of British Columbia and the federal laws of Canada applicable therein. The Parties irrevocably attorn to the exclusive jurisdiction of the courts of British Columbia sitting in the City of Vancouver for interpretation hereof and settlement of any disputes.

11.2. The Parties shall attempt to settle any disputes, claims and causes arising between them through consultation and negotiation in good faith. If the matter is not so settled and either Party wishes to pursue the matter further, then the dispute may be submitted to binding arbitration conducted under the Arbitration Act (British Columbia) by a single competent arbitrator (the “Arbitration”). Arbitration may be initiated by either Party by providing written notice to the other Party (the “Notice”). In such Arbitration, the selection of an arbitrator for the Arbitration shall occur by mutual agreement no later than fifteen (15) days following the receipt of the Notice. Should the Parties be unable to agree on the selection of an arbitrator in such period, any Party may make an application to the Supreme Court of British Columbia (the “Court”) to have an arbitrator appointed. Each Party shall prepare and exchange a list of three (3) proposed arbitrators of appropriate qualification and experience, from which each Party may strike one (1) name, submitting the remaining two (2) names from each list to the Court for determination and appointment based upon each arbitrator's qualifications and past experience. The cost of the arbitrator's fees shall be borne equally by both Parties and the place of Arbitration shall be Vancouver, British Columbia.

12. Survival

12.1. The provisions in Sections 2.2 and 2.3 and Articles 5, 7, 8, 10, 12 and 15 shall survive termination of this Agreement.

13. Relationship

13.1. Consultant shall be an independent contractor in performing its obligations under this Agreement. This Agreement does not create any agency, partnership, joint venture or other joint relationship between the Parties. Consultant shall be solely responsible for the manner in which the Work is performed. Neither Party shall represent itself or hold itself out to be an agent of the other. Neither Party hereto shall have any authority to act for or to assume any obligations or responsibility on behalf of the other Party hereto without the prior written consent of the other Party.

14. General

14.1. This Agreement constitutes the entire agreement between the Client and Consultant with respect to the Work and supersedes all other agreements, negotiations, representations or understandings between the Client and Consultant, whether written or otherwise in relation to the Work.

14.2. No amendment to this Agreement shall be binding unless reduced to writing and agreed to by each of the Parties.

14.3. No waiver by a Party of one or more defaults by the other Party in the performance of this Agreement shall operate or be construed as a waiver of or consent to any future default or defaults whether or not of like or different character. Any waiver of a Party’s rights hereunder must be in writing.

14.4. If any provision of this Agreement is unenforceable for any reason, such provision shall be severed from this Agreement and this Agreement shall be construed without having regard to such severed provision and all other provisions of this Agreement shall be deemed valid, binding and enforceable.

14.5. This Agreement shall be binding upon and shall enure to the benefit of the Client and Consultant and their respective successors and permitted assigns.

14.6. All references to “Dollars” and “$” shall be references to the currency specified in the applicable Statement of Work, and all amounts payable hereunder shall be paid in such currency.

14.7. Neither this Agreement nor the amounts due or which may become due in respect of any Work or invoice shall be assigned by a Party to any Person without the prior written consent of the other Party.

14.8. All notices exchanged under this Agreement shall be in writing, and shall be given by hand delivery, courier or e-mail to the Client or Consultant, as the case may be, at the applicable address or e-mail address set forth on the last page hereof provided that each Party shall deliver written notice to the other parties within five (5) Business Days of changing its address for notices contained herein. Any notice required or permitted to be given hereunder shall be sufficiently given if delivered in person or sent by registered mail or courier, postage prepaid or by email transmission, and such notice shall be deemed to have been received by the Party or Parties to whom it is directed when delivered, if sent, seventy-two (72) hours after the mailing thereof, if sent by email transmission, on the Business Day next following the date of sending barring any automated “undeliverable” or “bounce-back” notification received from the Sender within such time showing non-receipt.

14.9. Time shall be of the essence.

14.10. This Contract may be executed and delivered by facsimile or PDF (with electronic signature) and in any number of identical counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.