1260781 B.C. LTD. DBA VENTENOVA
MASTER SERVICES AGREEMENT - ADDITIONAL TERMS
PLEASE READ CAREFULLY: BY SIGNING AND ACCEPTING A PROPOSAL OR QUOTE (OR ACCEPTING DELIVERY OF THIRD PARTY PRODUCTS OR SERVICES FROM VENTENOVA) CLIENT ACCEPTS THAT THESE ADDITIONAL TERMS AND CONDITIONS WILL GOVERN THE DELIVERY OF SERVICES BY VENTENOVA TO THE CLIENT. IF CLIENT DOES NOT AGREE TO OR CANNOT COMPLY WITH ALL TERMS OF THIS AGREEMENT, THEN DO NOT INDICATE YOUR ACCEPTANCE.
IN CONSIDERATION OF THE SERVICES DELIVERED, THE FEES, MUTUAL COVENANTS AND ALL OTHER VALUABLE CONSIDERATION DESCRIBED HEREIN, THE PARTIES AGREE THAT ALL PROPOSAL(S) WILL BE SUPPLEMENTED BY THESE TERMS AND TOGETHER, WILL BE DEEMED A BINDING CONTRACT BETWEEN CLIENT AND VENTENOVA. This Agreement shall form a master agreement that covers all Proposals and Services delivered by VenteNova from time to time and terms regarding specific Third Party Products or services apply only to the extent Client has purchased, accessed or used such products or services. THIS AGREEMENT IS BINDING AS OF THE EARLIEST OF THE DATE THAT CLIENT ACCEPTS THESE TERMS AND CONDITIONS, THE FIRST DATE SERVICES ARE SUPPLIED BY VENTENOVA OR THE DATE ON WHICH CLIENT DOWNLOADS, INSTALLS, ACTIVATES OR USES A THIRD PARTY PRODUCT.
1. DEFINITIONS
All capitalized terms shall have the following meanings in this Agreement and all documents governed by it, unless otherwise specifically set out in such other documents:
“Affiliate” means any entity that controls, is controlled by, or is under common control with a party hereto. “Control” shall mean: (1) ownership (either directly or indirectly) of greater than fifty percent (50%) of the voting equity or other controlling equity of another entity; or (2) power of one entity to direct the management or policies of another entity, by contract or otherwise.
“Agreement” means this Agreement which includes all Proposal(s) and Schedules hereto as such may be modified by the parties from time to time.
“Applicable Laws” means all applicable federal, provincial and municipal laws, regulations, ordinances, permits, licenses, notices and other similar requirements as required by these terms and as amended from time to time.
“Client” means the entity identified as “Client” in a Proposal and all references to Client” shall include, as applicable, all of the Client’s employees, contractors, directors, officers, agents and permitted successors and assigns.
“Confidential Information” has the meaning defined in Section 5.
“Deliverables” means all “Services and Deliverables” described in the Proposal(s) and provided by VenteNova hereunder, EXCEPT Third Party Products which are expressly excluded from the Deliverables. Without limiting the foregoing and subject to Section 4, Deliverables shall include all work product from the Services including all Indicators, writings or works of authorship produced by VenteNova and any intellectual property that VenteNova conceives, creates, develops, or reduces to practice in connection with performing the Services.
“Indicators of Compromise” means forensic evidence or other details of anomalies, configurations or other actionable threat intelligence that flag unusual activity that may indicate an end point, network or system has been breached.
“Incorporated Material” has the meaning defined in Section 4.2.
“Fees” means all fees and charges for the Services at the rates and prices described in the Proposal(s), including but not limited to all license fees for any Third Party Products, as applicable. For clarity Fees, do not include applicable taxes or withholdings which will apply as invoiced or otherwise provided in a Proposal.
"Force Majeure Event" has the meaning described in Section 12.
"Losses" includes all claims, actions, causes of action, expenses of investigation, costs (including without limitation legal fees and disbursements), liabilities, losses, damages, settlement amounts, judgements, taxes, interest and penalties of any kind.
“Material Breach” means a failure to observe or perform any material obligation under this Agreement, if such breach is not rectified to the reasonable satisfaction of the compliant party within 30 business days after receipt of notice from the compliant party detailing such failure, EXCEPT in the case of non-payment by Client where no cure period will apply;
“VenteNova” means 1260781 B.C. LTD. DBA VenteNova including, as applicable, all of it its employees, contractors, directors, officers, agents, permitted successors and assigns and any of its Affiliates that perform Services hereunder.
“Proposal(s)” means all proposals, quotes or statements of work agreed to and signed by the parties, including all amendments thereto. All future Proposals signed during the Term shall be automatically made subject to these terms.
“Services” means all professional consulting services and Deliverables to be provided by VenteNova further to the Proposal(s). The Services may also include the provision of Third Party Products and related implementation and configurations for such Third Party Products, as well as on-site or virtual training courses for their use.
“Term” means the term of this Agreement described in Section 11, including the initial term and any renewal term(s).
“Third Party Product(s)” means all hardware and software products and related services from third party vendors or licensees that are resold to and licensed by the Client or utilized on Client’s behalf by VenteNova in connection with the Services (including all related software patches or fixes or hardware components or parts) as may be identified in a Proposal.
2. SERVICE DELIVERY
2.1. Client Policies
VenteNova will use all commercially reasonable efforts to deliver Services in accordance with Client policies, standards, and procedures that are applicable to the Services, including for Client site visits, to the extent VenteNova is made aware of same, in writing, reasonably in advance.
2.2. Client Responsibilities
Client acknowledges and agrees to perform those items, if any, detailed as “Client Expectations” in the Proposal(s). Client agrees that successful delivery of Services and Deliverables may depend on the timely delivery of these items by Client and Client will not hold VenteNova responsible if such items do not occur, are delivered late or otherwise negatively affect performance by VenteNova. Some of the Services may require the Client to have specialized knowledge or meet particular software or hardware requirements (for example, appropriate computers or appliances, stable Internet connection or up-to-date web browsers or operating system, etc.). If technical issues arise during the Services, VenteNova will use commercially reasonable efforts to resolve such issues but will have no liability based on Client’s failure to meet technical requirements. VenteNova will not provide any refund based on Client’s failure to meet Client Expectations.
2.3. Acceptance Procedures
Client will have at least thirty (30) days to evaluate any interim and final Deliverables (the “Acceptance Period”) to ensure that they meet Deliverables specifications and requirements as detailed in the Proposal(s). Client may reject any aspect of Deliverables during the Acceptance Period for material non-compliance with this Section, further to which, the Client may elect only one of the following remedies: (a) Client may grant additional time to VenteNova to provide (at no additional charge) corrected Deliverables, subject to evaluation and acceptance in accordance with this Section, and VenteNova will adjust Fees as it solely deems appropriate to reflect the delay in performance; (b) Client may itself correct the Deliverables (or engage a third party to do so) and may deduct reasonable costs and expenses (as approved by VenteNova in their sole discretion) associated with such correction from the Fees due to VenteNova in connection with such Deliverables; or (c) Client may cancel further delivery of the rejected Deliverable or terminate a related Change Request Form in accordance with Section 12 and VenteNova will reduce the Fees, as it deems appropriate in connection with the cancelled Deliverable.
2.4. Supply of Third Party Products
Use of Third Party Products may occur in connection with delivery of the Services. Third Party Products are supplied or utilized strictly on an “as is” basis and supply or use of same is subject to the additional terms in Schedule A hereto. Third Party Products are expressly excluded from the Deliverables and are supplied or utilized subject to (i) the warranty provided by the vendor or licensor of such Third Party Products; and (ii) any applicable end user license agreement or other terms of use required by such third-party vendor or licensor.
2.5. Project Management
Each party shall appoint a project manager who shall coordinate that party's activities related to the Services and be the primary point of contact for notice and matters related to this Agreement. Client's project manager shall issue assignments and general direction and guidance in connection with the Services. All performance-related inquiries shall be directed first to each party’s project manager.
3. VENTENOVA PERSONNEL
VenteNova will retain full discretion over which personnel provides the Services and may substitute personnel as reasonably required for its own business purposes. Upon reasonable request, VenteNova shall replace any person delivering the Services with another person acceptable to Client, provided any costs associated with such replacement will be 100% borne by Client. VenteNova shall be solely responsible for all wages, tax and other withholdings, employment insurance premiums, worker's compensation, health care and other benefits, and other amounts due to VenteNova employees or subcontractors. VenteNova shall ensure that all subcontractors comply with all laws and regulations related to workers' compensation remittances.
4. PROPERTY RIGHTS
4.1. Ownership of Deliverables
Except for Incorporated Material (defined below) and subject to these terms, all Deliverables will be the exclusive property of Client and VenteNova irrevocably assigns to Client all right, title and interest, worldwide, in and to all intellectual property rights contained in or related to the Deliverables. Client grants VenteNova a perpetual, irrevocable, fully-paid-up, royalty-free, worldwide license to use the Deliverables for purposes of meeting its obligations hereunder and to otherwise retain a copy of all Deliverables for business continuity and administrative purposes. Upon reasonable request, VenteNova shall obtain such waivers and releases as are necessary for VenteNova to comply with its obligations under this Section, including waivers of moral rights from employees and contractors who are authors or inventors of any Deliverables, provided that Client will reimburse VenteNova for any reasonable out-of-pocket expenses actually incurred by VenteNova in fulfilling its obligations hereunder.
4.2. Incorporated Material
Client acknowledges that if any material, creations, technology, inventions, discoveries, or works of authorship, including any Indicators, conceived, created or reduced to practice by or for VenteNova (alone or with others) either prior to delivery of Services or developed independently during the Term (“Incorporated Material”) are incorporated or embedded in the Deliverables, such Incorporated Material will remain the exclusive property of VenteNova or its suppliers, as applicable. VenteNova grants Client a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty-free, worldwide license to use the Incorporated Material for its internal business purposes only and not for distribution to third parties without consent.
4.3. Limited License
Except for the limited licenses granted herein, nothing in this Agreement shall transfer any other right, title or interest in or to the Incorporated Material, Marks, Confidential Information, Third Party Products or any intellectual property rights whatsoever therein, whether by implication, estoppel or otherwise. Nothing herein shall limit either party’s independent development or marketing of products, services or ideas similar to the Services or any Confidential Information supplied hereunder.
4.4. Trademarks & Trade Names
No party will have or claim any interest in any trademark, service mark, or trade name claimed or owned by the other during the Term (collectively the “Marks”) whether or not used in delivery of the Services. Each party will remain the sole and exclusive owner of all right, title, and interest in and to their own Marks. Any and all use of VenteNova Marks by Client will be deemed made by VenteNova for the purposes of trademark registration and will inure solely to the benefit of VenteNova. No party will contest, oppose, or challenge the other’s ownership of any Marks, or do anything to impair the other party’s ownership or rights in their own Marks. No party will create, adopt, use, or try to register a corporate name, trade name, trademark, or any other designation that includes any of the Marks or a term confusingly similar to any of the Marks.
5. CONFIDENTIALITY
5.1. Signed NDA
If the parties sign a separate Non-Disclosure Agreement or other confidentiality terms (an “NDA”), all Deliverables shall constitute “Confidential Information” governed by such NDA and the terms of such NDA shall supersede these terms with respect to the subject matter of the NDA. In the absence of any NDA, these terms shall apply.
5.2. Definitions
The following additional definitions apply to these terms:
“Confidential Information” means, subject to these terms, any and all non-public information, disclosed by either party to the other, whether disclosed prior to or after the date of this Agreement, about the business or operations of the Discloser including, but not limited to: i) the Services, pricing and other terms of this Agreement and all other information identified as confidential, a trade secret or proprietary information or that the Recipient knows or should know by the context or otherwise, is confidential, a trade secret or proprietary; ii) all technical and non-technical information and materials, including proprietary techniques and know how, business methods, strategies and plans, models, inventions, financial, marketing and sales, product, or personnel information, customer, supplier and partner data, processes, apparatus, equipment; algorithms and formulae, software programs, software source code, screen displays, research and experimental work, sketches, drawings, development, engineering and design details and specifications; and iii) third party information that is confidential or for which the Discloser is under an obligation of confidentiality, including with respect to suppliers and clients of the Discloser.
Confidential Information does not include information: i) legally in the possession of a Recipient before receipt from the Discloser as demonstrated by written records predating the date of this Agreement; ii) that was, is or becomes generally available to the public by means other than as a result of breach of this Agreement; iii) independently developed by or on behalf of the Recipient without use of the Confidential Information, provided such independent development can be verified by documentary evidence; or iv) disclosed by a third party free of any duty of confidentiality or fiduciary duty when the disclosure was made.
“Aggregated Services Data” means all data derived by VenteNova from performing the Services.
“Discloser” means either party, including as the context requires, its Affiliates and Representatives who disclose or deliver Confidential Information.
“Recipient” means either party, including as the context requires, its Affiliates and Representatives who directly or indirectly receive Confidential Information.
“Representative” means, with respect to any party or its Affiliates, all of their directors, officers, employees, contractors, agents, advisors, counsel and auditors.
5.3. Use & Disclosure of Confidential Information
The parties agree that all Confidential Information shall be held in strict confidence by the Recipient and shall be used only in connection with the performance of this Agreement and no party shall disclose or permit disclosure of any Confidential Information except:
(a) with written permission of the Discloser;
(b) pursuant to any applicable law, rule, regulation, stock exchange policy, valid rule, subpoena, or court order of any similar judicial or legal process or other request of any government agency, legislative or regulatory authority of competent jurisdiction, provided that, to the extent permitted by law, Recipient provides to the Discloser prior notice of the intended disclosure and reasonable opportunity to oppose such disclosure or, if prior notice is not permitted, at least prompt notice of such disclosure; or (c) to Affiliates and Representatives who have a need to know and are bound by legal, professional or written confidentiality obligations no less protective than this Agreement.
5.4. Protection
Each Recipient will protect the confidentiality of all Confidential Information with the same precautions taken by them to protect their own confidential information and in no event, with less than a reasonable degree of care.
5.5. Restrictions on Use
A Recipient shall not, directly or indirectly, reverse engineer, decompile or copy any Confidential Information in any manner or medium except as permitted by these terms. Each party agrees to adhere to all applicable laws and regulations relating to the export of technical data and no export to any prohibited country under such laws is permitted without written authorization of the other party hereto.
5.6. Survival
All obligations of confidentiality are effective throughout the Term and for 2 years thereafter PROVIDED that non-public, consumer information or personal information exchanged shall never be divulged and the obligations hereunder shall survive termination indefinitely, unless the parties specifically agree in writing to a shorter period for disclosure of such consumer or personal information.
5.7. Promotion
Neither party shall refer to the other or refer to having entered into this Agreement, for promotional or other reasons, without the prior written consent of the other.
5.8. Ownership
All Confidential Information shall remain the sole property of Discloser. Except as expressly stated herein, this Agreement does not grant or confer any right title or interest to any Confidential Information, except that Client grants to VenteNova a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license, worldwide to use Aggregated Services Data for VenteNova business purposes, including for the provision of services to other VenteNova customers, provided that the Aggregated Services Data is combined with similar data from other VenteNova customers, is not identifiable with the Client or any of its customers or service providers and does not contain Client Confidential Information or any personal information.
5.9. Remedies for Breach
Recipient acknowledges that a breach or threatened breach, by either party of Sections 4 or 5 may cause irreparable harm for which damages at law may not provide adequate relief. Without waiving any other right or remedy available in law or equity or under this Agreement, the non-breaching will be entitled to seek injunctive or other equitable relief enjoining a breach or threatened breach of these Sections at the earliest possible date as may be deemed appropriate by a court of competent jurisdiction and such remedies may be exercised without the necessity on the part of the injured party to: (i) prove that such damages would not be adequately compensated by monetary award; or (ii) post any bond or security, nor may the offending party resist an application for such relief on the ground that the injured party has an adequate remedy at law.
6. AUDIT RIGHTS
VenteNova or a Third Party Product supplier may, by itself or through a designate, audit Client’s usage of the Third Party Product to confirm compliance with this Agreement or the applicable license. VenteNova will cooperate with any reasonable advance request by Client to monitor the delivery of the Services during normal business hours in order to verify compliance with these terms, including by providing reasonable access to VenteNova equipment and facilities, subject to Client compliance with VenteNova company policies and procedures.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER
7.1. Mutual Warranty
Each of the parties hereto represent and warrant that they:
(a) have full power and authority to enter into this Agreement; and
(b) will perform their respective obligations and otherwise conduct themselves during the Term in accordance with all Applicable Laws.
7.2. VenteNova Service Warranty
VenteNova represents and warrants that the Services shall be performed in a competent, diligent, professional and careful manner, consistent with industry standards for such Services and reasonably conform to any specifications, drawings, samples, descriptions and requirements specified in the Proposal(s).
7.3. Warranty Disclaimer
VenteNova does NOT represent or warrant that the Services will guarantee any particular results or prevent cyber-security risks.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND TO THE GREATEST EXTENT PERMITTED BY LAW, VENTENOVA OFFERS ITS SERVICES, DELIVERABLES AND ALL OF ITS CONFIDENTIAL INFORMATION ON A STRICTLY BEST-EFFORTS BASIS, “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SECURITY, INTEGRATION, PERFORMANCE AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE MADE FOR CLIENT’S BENEFIT ONLY. CLIENT’S USE OF AND RELIANCE UPON THE SERVICES OR CONFIDENTIAL INFORMATION IS AT CLIENT’S OWN RISK. CLIENT UNDERSTANDS THAT ASSESSING NETWORK SECURITY IS A COMPLEX PROCEDURE, AND VENTENOVA DOES NOT GUARANTEE THAT DELIVERABLES OR OTHER SERVICES WILL BE ERROR-FREE OR PROVIDE A COMPLETE AND ACCURATE PICTURE OF CLIENT’S SECURITY FLAWS. CLIENT AGREES NOT TO RELY SOLELY ON THE SERVICES IN DEVELOPING ITS SECURITY STRATEGY.
7.4. Deliverables Warranty
VenteNova represents and warrants that it will take all commercially reasonable steps to ensure that no Deliverables infringe or misappropriate any copyright, patent, trademark, service mark, trade name, trade secret or other proprietary right of any person.
8. INDEMNITIES
8.1. VenteNova Indemnity
VenteNova shall, at its expense, indemnify and hold harmless the Client from and against any and all actions, claims, demands or Losses arising from or relating to:
(a) a Material Breach by VenteNova, including with respect to any obligations of confidentiality; or
(b) material damage or injury (including death) to persons or property directly resulting from an intentional or negligent act or omission of VenteNova.
8.2. Client Indemnity
Client shall at its expense, indemnify and hold harmless VenteNova, from and against any and all actions, claims, demands or Losses arising from or relating to:
(a) a Material Breach by Client, including with respect to any obligations of confidentiality;
(b) material damage or injury (including death) to persons or property directly resulting from an intentional or negligent act or omission of Client; and
(c) any Fees and applicable taxes related to Third Party Products and accelerated payment for Fees due in connection with any termination hereunder.
8.3. Indemnity Requirements
The indemnitor shall only be responsible for the indemnification obligations set forth in this Section 8 if the indemnitee: (i) provides the indemnitor prompt written notice of any action or claim of which it becomes aware; (ii) gives the indemnitor the right to control and direct the investigation, defense, and/or settlement of such action or claim; (iii) reasonably cooperates with the indemnitor in the defense of such a claim (at the indemnitor’s expense); and (iv) is not in breach of this Agreement. Nothing herein shall prevent an indemnitee from engaging in the defense of any claim with its own legal representation, provided that this does not materially prejudice the indemnitor’s defense. The indemnitor may not settle any claim on behalf of the indemnitee without obtaining the indemnitee’s prior written consent; provided, however, the indemnitor shall not be required to obtain consent to settle a claim which settlement consists solely of: (x) discontinued use of infringing Deliverables and/or (y) the payment of money for which the indemnitor has a duty to indemnify.
9. LIMITATION OF LIABILITY
9.1. Third Party IP Claims
Notwithstanding anything else herein, VenteNova shall have no liability with respect to a third-party intellectual property infringement claim arising out of: (i) Client’s use of the Deliverables in combination with other products or Services not provided by VenteNova; or (ii) Client’s failure to comply with this Agreement or license or user terms related to any Third Party Products, including unauthorized modifications of any Third Party Product.
9.2. Affected Deliverables
Subject to the limits in Section 9.1, if any Deliverable cannot be used or is interrupted due to a third-party intellectual property infringement claim, VenteNova shall at its sole option and expense either:
(a) modify or replace the affected Deliverable as necessary to avoid infringement, provided that the replacement Deliverable is substantially similar in functionality;
(b) procure for the Client the right to continue using the affected Deliverable; or
(c) terminate such Deliverable or this Agreement and, upon Client’s return or certified destruction of the infringing Product, VenteNova will provide Client a pro-rata refund related to the terminated Deliverable.
This Section 9.2 sets forth VenteNova’s sole and exclusive liability and Client’s sole and exclusive remedy with respect to third-party intellectual property infringement claims.
9.3. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFITS, REVENUES, CLIENTS OR CONTRACTS, LOSS OF USE OF EQUIPMENT, LOSS OF OR DAMAGED DATA, COST OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION (even if such party is advised of the possibility thereof), OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES INCURRED BY THE OTHER PARTY HOWSOEVER CAUSED OR ARISING, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SAME OR IF SAME WERE REASONABLY FORESEEABLE. FOR FURTHER CLARITY AND WITHOUT LIMITING THE FOREGOING, VENTENOVA WILL NOT BE LIABLE FOR FOLLOWING ANY INSTRUCTIONS OF THE CLIENT, OR ANY THIRD PARTY DIRECTING VENTENOVA ON THE CLIENT’S BEHALF, IRRESPECTIVE OF WHETHER OR NOT VENTENOVA HAS ADVISED THE CLIENT OF THE RISK ASSOCIATED WITH THE RELEVANT INSTRUCTIONS. CLIENT ACKNOWLEDGES THAT RELIANCE UPON THE SERVICES COULD CAUSE LOSS OF SERVICE OR HAVE OTHER IMPACTS TO NETWORKS, ASSETS OR HARDWARE, AND CLIENT IS SOLELY RESPONSIBLE FOR ANY DAMAGES RELATING TO SUCH LOSS OR IMPACT.
9.4. Direct Damages Limit
Notwithstanding anything else herein, the cumulative liability of one party to the other for all claims arising from or relating to this Agreement (including without limitation, any cause of action sounding in contract, tort or strict liability) shall be limited to proven direct damages in an amount not to exceed, in the aggregate, all Fees paid by Client over the 12 months immediately preceding the event giving rise to the first such claim, excluding Fees for Third Party Products.
9.5. Legal Limitations; Time Period for Claim
Each of the limitations set forth herein shall be enforced to the fullest extent of the law. Any laws preventing such limitations shall only apply to the extent required by law and the remaining unaffected terms shall apply in full. Unless expressly prohibited by law, each party shall have a period of no greater than 12 months from the date the cause of action accrues to bring a claim against the other party for such cause of action.
10. INSURANCE
VenteNova shall maintain at its own expense, such comprehensive general liability, professional errors and omissions and all-risks property insurance as VenteNova considers necessary to cover any risks it may assume in connection with the delivery of the Services. A copy of such coverage is available to Client upon request.
11. TERM & TERMINATION
11.1. Term
The term of this Agreement shall commence on the date specified on page 1 of these terms. Due to upfront commitments that VenteNova must make to ensure Services delivery, Client hereby acknowledges and agrees that early termination will not relieve the Client of the obligation to pay for all Services contracted for the Term as it exists prior to the date of termination, unless both parties’ project managers specifically agree otherwise in writing.
11.2. Single Proposal Termination
Termination of any particular Proposal (if there is more than one in place with Client) shall not, of itself, terminate the rest of this Agreement or any other Proposal thereunder.
11.3. Early Termination
Either party may, upon written notice, terminate all or any part of this Agreement (including part of a particular Proposal) only if:
(a) the other party commits a Material Breach; or
(b) the other party files or is the subject of a petition for bankruptcy, reorganization, winding-up, liquidation or dissolution, or a receiver or trustee is appointed for such party or its assets, or makes any assignment in favour of its creditors, or ceases to do business.
11.4. Post-Termination Obligations
Upon termination, whether with respect to the entire Agreement or only a particular Proposal, the Client shall, without further protest or demand, immediately pay all outstanding VenteNova invoices and Fees, plus applicable taxes, incurred up to and including the date of termination and:
(a) payment for all Services and Fees that are committed to for the remainder of the Term and outstanding on the day prior to the date of termination will immediately become due and payable, plus applicable taxes. VenteNova shall render a final invoice
for such Fees and Client agrees to pay such invoice upon receipt; and
(b) subject to receipt of payment as described above, VenteNova shall, upon request:
i. execute and deliver to Client such further assignments and transfers as may be required to transfer interests in Deliverables delivered up to the date of termination;
ii. promptly return to Client all Client-owned property, equipment or materials, including Confidential Information, except that VenteNova may retain copies as may be required for regulatory and internal business purposes; and
iii. otherwise take all commercially reasonable steps to ensure an orderly transition to a new service provider including, providing reasonable training for Client personnel subject to the parties agreeing upon reasonable Fees for the provision of such training; and
(c) Client acknowledges and agrees that it shall remain obligated to pay for all Third Party Products resold or licensed on Client’s behalf prior to the date of termination and Client agrees to execute and deliver such assurances and commitments to Third Party Product suppliers or licensors upon VenteNova request and Client hereby waives all right to pursue VenteNova for same after the date of termination. This waiver shall survive termination of this Agreement.
12. FORCE MAJEURE
With the exception of payment, neither party shall be responsible for any failure or delay in performance due to any act of God or the public enemy, war, riot, embargo, fire, explosion, sabotage, flood; strike, lockout or other labour disturbance; governmental, regulatory or judicial action, enactment, regulation, order or decree; or other circumstance (other than lack of funds) beyond such party's control, which could not have been prevented by reasonable precautions and cannot reasonably be circumvented by that party ("Force Majeure Event"). All delivery dates shall be extended to the extent of any Force Majeure Event.
13. NON-SOLICITATION
During the Term and for a period of one (1) year after their completion, neither party will, either directly or indirectly, solicit for employment any person employed by the other party or any of its Affiliates. For the avoidance of doubt, this restriction shall not prevent either party from hiring based on a response to a party’s own advertising in good faith to the general public a position or vacancy to which an employee or worker of either party responds, provided that no such advertisement shall be intended to specifically target either party’s personnel.
14. GENERAL
14.1. Independent Contractors
VenteNova and Client are independent contractors. Neither party has the authority to assume or to create any obligation or responsibility on behalf of the other party and nothing herein shall be construed as implying a joint venture, agency, partnership, employment or other relationship between the parties, other than independent contractors.
14.2. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of British Columbia and of Canada applicable therein without regard to its conflict of laws rules. The parties irrevocably attorn to the jurisdiction of the Courts of British Columbia. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any Services or Deliverables. Due to the high costs and time involved in commercial litigation before a jury, the Parties waive all right to a jury trial with respect to any issues in any action or proceeding arising out of or related to this Agreement.
14.3. Assignment
This Agreement will be binding on and enure to the benefit of the parties and their respective successors and permitted assigns. Neither party may assign any of its rights hereunder, except as permitted herein, without the prior written consent of the other, which will not be unreasonably withheld; provided, however, either party may transfer this Agreement to an Affiliate or in connection with a merger or sale of all (or substantially all) of the stock or other ownership units of such party.
14.4. Entire Agreement
Except for the NDA, this Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, oral or written. There are no warranties, representations or other agreements between the parties in connection with the subject matter hereof except as set forth herein.
14.5. Conflicting Terms
Except as otherwise specifically agreed to therein, all Proposal(s) will be governed by this Agreement. In the event of inconsistency between the Agreement and a particular Proposal, the Proposal shall only govern with respect to the matters described therein. Any conflicts between one Proposal and another, shall be resolved in favour of the document signed on the latest date. Any conflict between an NDA and these terms shall be governed by the NDA to the extent of such conflict only.
14.6. Amendments
No amendment or waiver hereof shall be binding unless executed in writing by both parties. No waiver of any provision hereof shall constitute a waiver of any other provision (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
14.7. Unenforceable Provision
Any provision hereof which is held illegal or unenforceable in any jurisdiction shall be ineffective to the extent of such illegality or unenforceability without invalidating the remaining provisions. Any such illegal or unenforceable provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. Each provision hereof that provides for a limitation of liability or remedies, disclaimer of warranties, indemnification of a party, or exclusion of damages or other remedies, is severable and independent of any other provision and is intended to be enforced as such.
14.8. Headings
All section headings, subsections and attachments hereto are for convenient reference only and shall not affect construction or interpretation hereof. Words importing the singular include the plural and vice versa, and words importing gender include all genders.
14.9. Notices
Except as otherwise specified herein, any notice or demand required or permitted to be given to a party shall be in writing and shall be delivered by email or other similar electronic communication or sent by prepaid courier to the intended recipient at its address set out on page one above or such other address as such recipient may from time to time specify by notice in accordance with the foregoing. Any notice or demand delivered in accordance with the foregoing shall be deemed received on the first business day following the date of its transmission by electronic communication or on the day of delivery if couriered.
14.10. Further Acts
The parties shall execute and deliver such further and other documents and instruments and shall do such further and other acts and things as may be necessary to give effect to the provisions hereof.
14.11. Survival
The following terms shall survive the expiry or termination for any reason (and whether or not for cause) of this Agreement: Sections 2.3 (Acceptance Procedures), 4 (Property Rights), 5 (Confidentiality), 6 (Audit Rights), 8 (Indemnities), 9 (Limits of Liability), 11.4 (Post-Termination), 13 (Non-Solicitation), 14.2 (Governing Law), 14.7 (Unenforceable Provision), 14.10 (Further Acts), and 14.11 (Survival).
14.12. Language
The language of this Agreement is English and all invoices and other documents given under this Agreement must be in English to be effective. No translation, if any, of this Agreement or any notice will be of any effect in the interpretation of this Agreement or in determining the intent of the parties. The Parties have expressly agreed that all invoices and related documents be drafted in English. The following shall apply solely for Agreements which are under French Canadian jurisdiction: C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattacent soient rédigés en anglais.
SCHEDULE A to VenteNova Master Services Agreement Additional Terms
THIRD PARTY PRODUCTS
The parties agree that the supply, license or use of any Third Party Products in connection with the Services is subject to the following additional terms and conditions.
A.1. Third Party Products - Specific Terms
Client agrees to abide by all terms and conditions of any applicable end-user license agreement or terms of use for all Third Party Products supplied, licensed or utilized hereunder and maintain such agreements in good standing, including by way of payment of all fees due thereunder. Client agrees, without protest, to do all things reasonably necessary to execute all required licenses or user terms and to make all other commitments required to secure access or use of Third Party Products recommended by VenteNova in order to deliver the Services, and Client agrees to meet or exceed all specifications required by any third party for use of any Third Party Products.
A.2. License Restrictions, Pre-Payment & Overages
Third Party Product licenses or user terms may include limitations on term, the number of users, targets, seats, licenses and/or types of modules licensed. Where Third Party Product terms are either perpetual or subscription in nature, Client agrees to pay for same as invoiced, including by pre-payment where required by the third party. If Client exceeds license or user restrictions, Client agrees to pay all overage fees and other charges or purchase an upgraded license to allow for all actual or additional usage as recommended by VenteNova.
A.3. Restrictions on Use
If applicable, Client shall not directly or indirectly: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive, obtain or modify the source code of the Third Party Products; (ii) reproduce, modify, translate or create derivative works of all or any part of the Third Party Products; (iii) remove, alter or obscure any proprietary notice, labels, or marks on the Third Party Products; (iv) without prior written consent of the third party, use the Third Party Products in a service bureau, application service provider or similar capacity; (vi) use the Third Party Products in order to create competitive analysis or a competitive product or service; (vii) copy any ideas, features, functions or graphics in the Third Party Products; or (viii) use the Third Party Products to manage or gather information not owned or hosted by Client, or for which Client does not have authorization to possess.
A.4. Intellectual Property in Third Party Products
This Agreement does not transfer to Client any title to or any ownership right or interest in any Third Party Products.=
A.5. Third Party Products Changes
Third Parties may reserve the right to withdraw features from future versions of Third Party Products and VenteNova will not be held responsible for any associated reduction in functionality or results, even if such feature changes require the Client to seek out a different Third Party Product and incur additional fees to achieve functionality or results required for effective delivery of the Services.
A.6. Information Supply to Third Parties
Client agrees to provide all information necessary for the delivery of the Services and where necessary to third parties in connection with the use of Third Party Products, which may include, lawful audits of VenteNova use of Third Party Products, behavioral attributes such as whether or not certain features in the Third Party Products are utilized, or other relevant information (“Technical Data”). Wherever possible VenteNova agrees to only disclose Technical Data which has been properly anonymized and cannot be attributed to an individual user/administrator of the Client. VenteNova may use Technical Data for reasonable business purposes, including product support, license validation and research and development.=
A.7. Business Purpose Use
Client warrants that it will use Third Party Products solely for Client’s own internal business purposes.
A.8. Support Services
VenteNova will not be responsible for the support services provided by third parties in connection with the Third Party Products.
A.9. Corrupt Practices and Trade Controls Compliance
Client acknowledges and agrees that the use of certain Third Party Products may require compliance with these additional terms and if applicable:
(i) Anti-Bribery. Client agrees that Applicable Laws to which it must comply will also include, without limitation, the Corruption of Foreign Public Officials Act, S.C. 1998, c. 34, the Computer Fraud and Abuse Act (CFAA), 18 USC Sec. 1030, the U.S. Foreign Corrupt Practices Act of 1977, and the UK Bribery Act of 2010. If Client violates this Section A9, VenteNova may terminate this Agreement immediately.
(ii) Trade Controls. Client also agrees that Applicable Laws to which it must comply will include U.S. export laws (including the International Traffic in Arms Regulation (ITAR), 22 CFR 120-130, and the Export Administration Regulation (EAR), 15 CFR Parts 730 et seq.) and the anti-boycott rules implemented by the US Departments of Commerce and Treasury. Client further agrees to comply with trade and economic sanctions, rules, and regulations of the United States, European Union, EU member states, United Kingdom and other applicable government authorities and shall not engage in prohibited trade to persons or entities who are the subject of an active sanction, embargo, or executive order. Client hereby acknowledges and confirms that it: (i) is not included on, owned or controlled by an individual or entity included on, or acting on behalf of an individual or entity included on any of the restricted party lists maintained by the U.S. Government (e.g. the Specially Designated Nationals List, Foreign Sanctions Evader List, Sectoral Sanctions Identification List, Denied Persons List, Unverified List, Entity List or List of Statutorily Debarred Parties) (collectively, “Restricted Parties”); or (ii) will not permit the use of the Third Party Products for nuclear end-uses, rocket systems, unmanned air vehicles, chemical or biological weapons, maritime nuclear propulsion, weapons of mass destruction or other restricted end-uses except to the extent consistent with Trade Control Laws.
